SAN FRANCISCO (CN) – The Ninth Circuit heard from both sides on Wednesday in a case alleging that the National Park Service wrongfully exhumed more than 300 sets of Native American human remains and cultural artifacts from Canyon de Chelly National Monument.
The Navajo Nation sued the National Park Service and the Department of the Interior in 2011, claiming that the government’s exhumation violates the Treaty of 1868 – which ended years of fighting between the tribe and federal troops and established the borders of the Navajo Reservation – and the U.S. Constitution.
The service is holding the remains and artifacts at the Western Archaeology Center in Tucson, and the tribe has been trying to get them back since the 1990s, according to the complaint. The tribe also sought to halt a process of repatriation under way through the Native American Graves Protection and Repatriation Act (NAGPRA).
Appealing a federal judge’s dismissal of the case, Paul Spruhan argued before a three-judge panel that both the Treaty of 1868 and the Archaeological Resources Protection Act (ARPA) give the tribe a preexisting “right of control” to the remains and artifacts.
Circuit Judge Sandra Ikuta said that the case’s “key question” is whether the government waived its sovereign immunity.
“Any disposition has to be done with the Nation’s consent,” Spruhan responded. “It’s implicit in all the documents that lead up to NAGPRA.”
Mary Gabrielle Sprague, arguing for the National Park Service, said that there is no exception in the text of NAGPRA for cultural items that were excavated in Indian items.
The panel issued a quick series of clarifying questions – Circuit Judge Morgan Christen asked Sprague whether she was arguing that the government’s custody of the items constituted a de facto legal interest, and Circuit Judge Mary Schroeder said she was “confused” as to where the items were in the NAGPRA process.
Seemingly flustered, Sprague provided a blanket response that “NAGPRA applies, ARPA doesn’t.”
In rebuttal, Spruhan said that the government’s custody of the items at issue is “not enough” to justify a legal interest and that is current practices are “inconsistent with the National Park Service’s own regulations.”
Spruhan is an assistant attorney general for the Navajo Nation Department of Justice.
Sprague is with the U.S. Department of Justice.
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