9th Circ. Rules for Tribe in Human-Remains Case

     (CN) – The National Park Service must face claims that it wrongfully exhumed more than 300 sets of Native American human remains and cultural artifacts from a national monument, the Ninth Circuit ruled.
     In 2011, the Navajo Nation sued the National Park Service (NPS), Interior Department, the two agencies’ top officials and Canyon de Chelly National Monument Park Superintendent Tom Clark in Federal Court.
     Canyon de Chelly National Monument, on the Arizona portion of the vast Navajo Reservation, is well-known for its dramatic rock formations and ruins of ancient cliff dwellings. The monument, which includes more than 20 miles of red sandstone walls, is one the of reservation’s top tourist attractions.
     Canyon de Chelly has been inhabited and considered a spiritual landscape by the Navajo, Hopi, Zuni and other tribes for nearly 4,000 years.
     About 40 Navajo families still farm and raise livestock in the canyon. The Navajo, the country’s largest tribe, refer to themselves as Diné, meaning “people.”
     “Since the establishment of the National Monument, without seeking or obtaining consent or permission of the Navajo Nation government, and contrary to Diné spiritual, religious and cultural practice, NPS has dug up and carried off human remains, and cultural objects, from Canyon de Chelly and Canyon del Muerto, and put them in its ‘collection,'” the 2011 lawsuit states, which was filed in Arizona.
     NPS is holding at least 303 sets of human remains and various cultural artifacts from the canyon at the Western Archeology Conservation Center in Tucson. The Navajo has been trying to get the trove back since at least the late 1990s, according to the complaint.
     The agency’s actions violated the Treaty of 1868, which ended prolonged fighting between the Navajo and federal troops and established the borders of the Navajo Reservation, and the U.S. Constitution, according to the tribe.
     The Navajo also alleged violations of the Treaty of 1849, Native American Graves Protection and Repatriation Act (NAGPRA), Archaeological Resources Protection Act (ARPA), and Administrative Procedure Act (APA).
     “In the Navajo world view, exhuming human remains causes illness to human beings, including depression, arthritis, and family and intertribal disharmony, damages crops, natural ecosystems and the environment, and disrupts local and global weather patterns,” the tribe’s lawsuit states. “By agreeing to the establishment of the Canyon de Chelly National Monument, the Navajo Nation Council would never have agreed, and did not agree, that the National Park Service, or any other party, was thereby allowed to exhume and carry off human remains and sacred and other cultural objects located on or in the monument.”
     NPS removed the items from 1931 to 1990. In the mid-1990s, the service began to inventory the remains and objects under the NAGPRA, with an ultimate goal of repatriating the remains and objects to culturally-affiliated tribes.
     The Navajo also sought to halt that process. In a letter, tribal attorneys demanded that the service “immediately make arrangements to return the remains and cultural objects to the Navajo Nation.”
     A federal judge dismissed the case as barred by sovereign immunity, ruling NPS had not taken any final agency action as to its disposition of the remains and objects.
     Appealing to the Ninth Circuit in 2015, Paul Spruhan, assistant attorney general for the Navajo Nation Department of Justice, argued that both the Treaty of 1868 and ARPA gave the tribe a preexisting “right of control” to the remains and artifacts.
     The San Francisco-based appeals court on Wednesday reversed the lower court’s decision and held that it had proper jurisdiction to consider the claims. The Ninth Circuit ruled that NPS’ decision to inventory the items was a final agency action under the APA.
     “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,” Judge Morgan Christen wrote for a three-member panel.
     Christen added that the Navajo “exhausted all available administrative remedies for seeking review of the decision to apply NAGPRA and for obtaining possession of the remains and objects.”
     “In the 15 years prior to filing suit, the Navajo Nation repeatedly demanded an explanation of the secretary’s decision that NAGPRA applies, as well as return of the remains and objects,” Wednesday’s ruling states. “Their efforts yielded only correspondence reporting that Interior’s solicitor opined that NAGPRA applies to the remains and objects, and that no further opinion will be provided by the agency.”
     Judge Sandra Ikuta dissented, finding that there was no final agency action reviewable under the APA, and that the federal government did not waive its sovereign immunity.
     “The Park Service is making a good faith effort to comply with federal law, which requires it to engage in a deliberate and open process to determine who is entitled to the human remains and artifacts it currently holds,” Ikuta wrote.
     The majority’s “strained attempt” to detect a final agency action, Ikuta added, “without a decision-making process, a written decision, or a determination that has any legal effect on the Navajo Nation, has no support in the record or in our precedent.”

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