Navajo Nation v. U.S. Dep't of the Interior, No. 13–15710.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCHRISTEN, Circuit Judge
Citation819 F.3d 1084
Parties 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.
Decision Date06 April 2016
Docket NumberNo. 13–15710.

819 F.3d 1084

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.

Argued and Submitted June 10, 2015.
Filed April 6, 2016.


819 F.3d 1085

Paul Spruhan(argued), Assistant Attorney General; Harrison Tsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, AZ; Paul E. Fryeand William Gregory Kelly, Frye Law Firm, Albuquerque, NM, 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

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

819 F.3d 1086

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

819 F.3d 1087

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.

819 F.3d 1088

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 Resources Protection Act (ARPA), which established permit requirements for removing archaeological resources from public and Indian lands. 16 U.S.C. § 470cc. Unlike the Antiquities Act, ARPA clearly distinguishes between "public lands" and "Indian lands" held in trust by the federal government. See id. § 470bb(3)–(4). Under ARPA, a permit authorizing excavation or removal of archaeological resources located on Indian land requires the consent of the tribe, and tribes are not required to obtain a permit to excavate or remove archaeological resources on their Indian lands. Id. § 470cc(g). ARPA's implementing regulations provide that "[a]rchaeological resources excavated or removed from Indian lands remain the property of the Indian or Indian tribe having rights of ownership over such resources," while "[a]rchaeological resources excavated or removed from the public lands remain the property of the United States." 43 C.F.R. § 7.13(a)–(b). ARPA requires an agency to notify Indian tribes of possible harm to or destruction of sites the tribe may consider to have religious or cultural importance. Id. § 470cc(c). Further, ARPA gives the Secretary of the Interior authority to "promulgate regulations providing for ... the ultimate disposition" of "archaeological resources removed from public lands and Indian lands" and provides that the "ultimate disposition under such regulation of archaeological resources excavated or removed from Indian lands shall be subject to the consent of the Indian or Indian tribe which owns or has jurisdiction over such lands." 16 U.S.C. § 470dd.

It is uncontested that 297 of the 303 sets of remains and objects were removed without the Nation's consent, but the complaint alleges that in the 1980s the Navajo Nation consented to the Park Service's disinterment of six...

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10 practice notes
  • Inst. for Fisheries Res. v. Hahn, Case No. 16-cv-01574-VC
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
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    ...424 F.Supp.3d 748 The two-step test for finality applies on an issue-by-issue basis. See Navajo Nation v. U.S. Department of Interior , 819 F.3d 1084, 1091 (9th Cir. 2016). In theory, then, both parts, one part, or neither part of the guidance document could be final agency action reviewabl......
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    ...first prong of Bennett satisfied where the Park Service issued an "informal opinion" via email and letter to the Navajo Nation. 819 F.3d 1084, 1090 (9th Cir. 2016). The opinion stated that the agency was "required by law to complete the NAGPRA process for cultural items excav......
  • Lee v. Mercury Ins. Co. of Ga., A17A0624
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    • November 3, 2017
    ...of this treatise, other courts have cited its view of punctuation favorably. See Navajo Nation v. United States Dept. of the Interior, 819 F.3d 1084, 1093 (9th Cir. 2016) ("Punctuation is a permissible indicator of meaning.") (citation and punctuation omitted); Maple Drive Farms v......
  • J.L. v. Cissna, Case No. 18-cv-04914-NC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 2019
    ...103–04. That guidance was then adopted and published in the CHAP. See CAR 106, 107–18. Navajo Nation v. United States Dept. of Interior , 819 F.3d 1084, 1089 (9th Cir. 2016) is directly on point. In Navajo Nation , the National Park Service determined that federal law applied to assorted Na......
  • Request a trial to view additional results
10 cases
  • Inst. for Fisheries Res. v. Hahn, Case No. 16-cv-01574-VC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 2019
    ...424 F.Supp.3d 748 The two-step test for finality applies on an issue-by-issue basis. See Navajo Nation v. U.S. Department of Interior , 819 F.3d 1084, 1091 (9th Cir. 2016). In theory, then, both parts, one part, or neither part of the guidance document could be final agency action reviewabl......
  • Faith Int'l Adoptions v. Pompeo, CASE NO. 2:18-cv-00731-RBL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • October 30, 2018
    ...first prong of Bennett satisfied where the Park Service issued an "informal opinion" via email and letter to the Navajo Nation. 819 F.3d 1084, 1090 (9th Cir. 2016). The opinion stated that the agency was "required by law to complete the NAGPRA process for cultural items excav......
  • Lee v. Mercury Ins. Co. of Ga., A17A0624
    • United States
    • United States Court of Appeals (Georgia)
    • November 3, 2017
    ...of this treatise, other courts have cited its view of punctuation favorably. See Navajo Nation v. United States Dept. of the Interior, 819 F.3d 1084, 1093 (9th Cir. 2016) ("Punctuation is a permissible indicator of meaning.") (citation and punctuation omitted); Maple Drive Farms v......
  • J.L. v. Cissna, Case No. 18-cv-04914-NC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 2019
    ...103–04. That guidance was then adopted and published in the CHAP. See CAR 106, 107–18. Navajo Nation v. United States Dept. of Interior , 819 F.3d 1084, 1089 (9th Cir. 2016) is directly on point. In Navajo Nation , the National Park Service determined that federal law applied to assorted Na......
  • Request a trial to view additional results

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