Navajo Nation v. U.S. Dep't of the Interior, CV-11-08205-PCT-PGR
| Decision Date | 12 February 2013 |
| Docket Number | No. CV-11-08205-PCT-PGR,CV-11-08205-PCT-PGR |
| Parties | The Navajo Nation, Plaintiff, v. The United States Department of the Interior, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is the defendants' Motion to Dismiss (Doc. 13). Having considered the parties' memoranda in light of the relevant record, the Court finds that the motion should be granted to the extent that the Court finds that this action is barred at this time by the doctrine of sovereign immunity.1
This action stems from the long-standing desire of the plaintiff, the Navajo Nation, to obtain the immediate repatriation of 303 sets of human remains and otherassociated cultural objects removed by the National Park Service ("NPS") from the Canyon de Chelly National Monument ("the Monument"), which is a unit of the NPS located within the exterior boundaries of the Navajo Reservation; the human remains and cultural objects at issue are currently being held by the NPS at its Western Archeology Conservation Center in Tucson, Arizona. The plaintiff's complaint names as defendants the United States Department of the Interior, Kenneth Salazar, in his official capacity as the Secretary of the Department of the Interior, the NPS, Jonathan B. Jarvis, in his official capacity as the Director of the NPS, and Tom O. Clark, in his official capacity as the Superintendent of the Monument. The complaint, which seeks the immediate return of the human remains and cultural items through the plaintiff's requests for declaratory and injunctive relief, alleges violations of the Treaty of 1850 and the Treaty of 1858 (Count One)2 , breach of fiduciary duty (Count Two)3 , violation of the Archaeological Resources Protection Act (Count Three)4 , violation of the Constitution (Count Four)5 , and violation of the AdministrativeProcedure Act (Count Five)6 .
As set forth in the complaint, the Navajo Reservation was established by treaty in 1868; included within the reservation boundaries are the Canyon de Chelly and its tributary Canyon del Muerto, both of which have extraordinary cultural and historical significance to the Navajo people. In 1930, the Navajo Nation Council approved the establishment of the Monument; the Monument was authorized by Congress in 1931, see 16 U.S.C. §§ 445-445b, and was formally established by presidential proclamation in 1933. Specifically included within the Monument are all lands within Canyon de Chelly and Canyon del Muerto. The legislation authorizing the creation of the Monument provides in part that "[n]othing herein shall be construed as in any way impairing the right, title, and interest of the Navajo Tribe of Indians which they now have and hold to all lands and minerals, including oil and gas, and the surface use of such lands for agricultural, grazing, and other purposes, except as defined in section 445b of this title[.]" 28 U.S.C. § 445a. The legislation further provides that the NPS "is charged with the administration of [the Monument], so far as it applies to the care, maintenance, preservation and restoration of the prehistoric ruins, or other features of scientific or historical interest within the area[.]"28 U.S.C. § 445b.
The complaint alleges that since the establishment of the Monument, the NPS has dug up and carried off human remains and cultural objects from Canyon de Chelly and Canyon del Muerto, all without seeking or obtaining the consent of the plaintiff, and contrary to the spiritual, religious and cultural practice of the Navajo people. In approximately 1996, the NPS began an inventory of these human remains and cultural objects in its collection pursuant to the Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.SC. § 3001 et seq., despite the demands by the Navajo Nation Historic Preservation Department that these items had to be returned to the plaintiff because they are the property of the plaintiff inasmuch as they were removed from the plaintiff's original treaty lands. The NPS, over the plaintiff's repeated objections, has recently begun a cultural affiliation process pursuant to NAGPRA in order to repatriate the human remains and cultural objects at issue to either the Navajo, Hopi, Zuni, or potentially some other tribe; the plaintiff is participating in the NAGPRA process in order to protect its rights, while continuing to object to the process. On August 9, 2011, the Navajo Nation Department of Justice sent a written notice to Superintendent Clark of the plaintiff's intent to sue the NPS unless the NAGPRA process was immediately ceased and arrangements were made to return the human remains and cultural objects to the plaintiff. In a responsive letter dated September 7, 2011, Superintendent Clark stated that it was the position of the NPS that the repatriation of the human remains and cultural objects could not be made prior to the completion of the tribal consultation and cultural affiliation process mandated by NAGPRA.
The defendants, which seek the dismissal of this action in its entirety on avariety of grounds, initially argue that the adjudication of this action is barred pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction due to the bar of sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) () The defendants assert, without contravention by the plaintiff, that all of the plaintiff's claims must rely on the limited waiver of the United States' sovereign immunity set forth in the Administrative Procedure Act ("APA"). See 5 U.S.C. § 702. The defendants' position is that sovereign immunity has not been waived for any of the plaintiff's claims because there has not been any final agency action or unlawful inaction for purposes of the APA.7
When a claim is brought pursuant to the general review provisions of the APA8 , sovereign immunity is waived when the challenged federal agency action constitutes a "final agency action for which there is no other adequate remedy in a court[.]" 5 U.S.C. § 704. The plaintiff, which bears the burden of establishing that its claims are now justiciable, argues that the final agency action that is reviewable under the APA is the NPS' decision, as set forth in Superintendent Clark's letter ofSeptember, 2011, whereby the NPS rejected the plaintiff's demand for the immediate return the human remains and cultural objects at issue to it based on the NPS' opinion that it was legally required to complete the NAGPRA process before repatriation could occur notwithstanding the plaintiff's non-consent to that process. The defendants argue that there has not yet been a reviewable final agency action. The Court agrees with the defendants.
NAGPRA, which was enacted by Congress subsequent to the enactment of Archaeological Resources Protection Act ("ARPA"), in part to specifically protect tribal burial sites and rights to items of tribal cultural significance, including Native American remains, funerary objects, sacred objects, and objects of cultural patrimony, 25 U.S.C. § 3001(3); 43 C.F.R. § 10.1(b), sets forth in relevant part a complex repatriation process through which lineal descendants and culturally affiliated tribes can recover human remains and cultural objects removed from tribal lands when those remains and objects were in the "procession or control" of federal agencies as of NAGPRA's effective date, November 16, 1990.9 25 U.S.C. §§ 3003-3004; Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936, 938 (10th Cir.1996). Notwithstanding that the plaintiff does not raise any independent NAGPRA claim in its complaint and argues that ARPA, not NAGPRA, controls the disposition of the human remains and cultural items at issue, the Court concludes for purposes of the pending motion that NAGPRA is applicable to this action.
The gist of the plaintiff's argument regarding NAGPRA's non-applicability is that NPS has never had lawful possession or control over the items as they remain the plaintiff's property. For purposes of NAGPRA, a federal agency has"possession" if it has "physical control of human remains, funerary objects, sacred objects, or objects of cultural patrimony with a sufficient legal interest to lawfully treat the objects as part of its collection[,]" and it has "control" over such items if it has "a legal interest ... sufficient to lawfully permit [it] to treat the objects as part of its collection[.]" 43 C.F.R. § 10.2(a)(3)(I) and (ii). The defendants argue, and the Court agrees, that the statute establishing the Monument provides the NPS with "legal interest" over the human remains and cultural objects removed from the Monument sufficient to meet NAGPRA's possession or control requirement because the statute specifically grants the NPS broad authority to administer the Monument "so far as it applies to the care, maintenance, preservation and restoration of the prehistoric ruins, or other features of scientific or historical interest within the area[.]" 28 U.S.C. § 445b.
In order for the NPS' action at issue to constitute final agency action for APA judicial review purposes, the action must mark the consummation of the NPS' decision-making process, i.e. the action must not be merely tentative or interlocutory in nature, and it must be one by which rights or obligations have been determined or one from which legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177-78 (1997). At the very least, the first finality factor has not been met here. The NPS' position set forth in Superintendent Clark's letter, whether it be its decision not to immediately return the human remains and cultural objects to the plaintiff or its decision that it is legally required to comply with the NAGPRA repatriation process, does not constitutes the culmination of the NPS' decision-making process regarding the ultimate disposition of the human remains...
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