Navajo Nation v. Usdoi , 819 F.3d 1084 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAVAJO NATION, No. 13-15710
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-08205-
PGR
U.S. DEPARTMENT OF THE INTERIOR;
KENNETH LEE SALAZAR, in his
official capacity as Secretary of the OPINION
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.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted
June 10, 2015—San Francisco, California
Filed April 6, 2016
Before: Mary M. Schroeder, Sandra S. Ikuta,
and Morgan Christen, Circuit Judges.
2 NAVAJO NATION V. USDOI
Opinion by Judge Christen;
Dissent by Judge Ikuta
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NAVAJO NATION V. USDOI 3
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.
COUNSEL
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.
4 NAVAJO NATION V. USDOI
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 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
NAVAJO NATION V. USDOI 5
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
1
Places Reflecting America’s Diverse Cultures, Nat’l Park Serv.,
http://www.nps.gov/nr/travel/cultural_diversity/Canyon_de_Chelly_
National_Monument.html (last visited Mar. 8, 2016).
6 NAVAJO NATION V. USDOI
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
2
See Canyon de Chelly - History and Culture, Nat’l Park Serv.,
http://www.nps.gov/cach/learn/historyculture/index.htm (last visited Mar.
8, 2016).
3
Nat’l Park Serv., supra note 1.
4
David M. Brugge & Raymond Wilson, Administrative History: Canyon
de Chelly National Monument Arizona, U.S. Dep’t of the Interior Nat’l
Park Serv. (Jan. 1976), http://www.nps.gov/cach/learn/historyculture/up
load/CACH_adhi.pdf
5
Nat’l Park Serv., supra note 1.
NAVAJO NATION V. USDOI 7
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
8 NAVAJO NATION V. USDOI
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 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
6
See Brugge & Wilson, supra note 4.
NAVAJO NATION V. USDOI 9
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 sets of
remains from grave sites being eroded, on the condition that
they be reinterred immediately.7 Instead, according to the
complaint, the Park Service took the remains and added them
to its collection at the Western Archeology Conservation
Center in Tucson, Arizona.
In 1990, Congress enacted the Native American Graves
Protection and Repatriation Act (NAGPRA). See 25 U.S.C.
§§ 3001–3013. Section 3003 of NAGPRA states:
Each Federal agency and each museum which
has possession or control over holdings or
7
The Park Service denies that it agreed to immediately reinter the
remains. But in reviewing the district court’s order granting a motion to
dismiss, we accept the complaint’s allegations as true. See Bill v. Brewer,
799 F.3d 1295, 1299 (9th Cir. 2015).
10 NAVAJO NATION V. USDOI
collections of Native American human
remains and associated funerary objects shall
compile an inventory of such items and, to the
extent possible based on information
possessed by such museum or Federal agency,
identify the geographical and cultural
affiliation of such item.
25 U.S.C. § 3003(a).8 The inventory must include a
description of each set of items, the geographical and cultural
affiliation of the items, information regarding the acquisition
and accession of the items, and a summary of the evidence
used to determine the cultural affiliation of the items. 43
C.F.R. § 10.9(a), (c). “The purpose of the inventory is to
facilitate repatriation by . . . establishing the cultural
affiliation between these objects and present-day Indian tribes
. . . .” Id. § 10.9(a). To that end, in creating the inventory,
the agency must consult with any tribes likely to be
geographically or culturally affiliated with the items.
25 U.S.C. § 3003(b); 43 C.F.R. § 10.9(b). The consultation
process is a tribe’s opportunity to voice its reasons for
seeking repatriation of the items. See 43 C.F.R.
§ 10.9(b)–(c). If the inventory process establishes an item’s
“known lineal descendant” or “cultural affiliation” with an
Indian tribe, then the agency must “expeditiously return” the
item upon request. 25 U.S.C. § 3005(a)(1).
Before NAGPRA’s enactment, the Secretary of the
Interior did not promulgate regulations providing for the
ultimate disposition of any resources excavated or removed
pursuant to ARPA. See Archaeological Resources Protection
8
A separate provision governs the disposition of items excavated or
discovered after NAGPRA’s enactment. See 25 U.S.C. § 3002.
NAVAJO NATION V. USDOI 11
Act of 1979; Final Uniform Regulations, 49 Fed. Reg. 1,016,
1,032 (Jan. 6, 1984). After Congress passed NAGPRA, the
Secretary promulgated regulations providing that NAGPRA
governs the ultimate disposition of any remains and items
covered by both NAGPRA and ARPA. See 43 C.F.R.
§ 7.3(a)(6) (“For the disposition following lawful removal or
excavations of Native American human remains and ‘cultural
items’, as defined by [NAGPRA], the Federal land manager
is referred to NAGPRA and its implementing regulations.”);
Id. § 7.13(e) (“[T]he Federal land manager will follow the
procedures required by NAGPRA and its implementing
regulations for determining the disposition of Native
American human remains and other ‘cultural items’, as
defined by NAGPRA, that have been excavated, removed, or
discovered on public lands.”).
In the mid-1990s, the Park Service began the NAGPRA
inventory process for the remains and objects it removed
from Canyon de Chelly National Monument. As part of this
process, the Park Service began consulting with the Navajo
Nation and the Hopi and Zuni Pueblos.9 Shortly thereafter, in
June 1996, the Navajo Nation sent a letter to the
Superintendent of Canyon de Chelly National Monument
asserting that it owned “all human remains and associated
funerary objects within the National Monument,” and
objecting to the inventory process. The Park Service replied
by letter stating that it would “handle all . . . requests for
repatriation in strict accordance with the NAGPRA” and
9
The Navajo did not populate the Canyon de Chelly region in
significant numbers until around 1700. Before then, predecessors to the
modern Hopi and Pueblo occupied the region. Nat’l Park Serv., supra
note 1.
12 NAVAJO NATION V. USDOI
encouraging the Navajo Nation to participate in the inventory
process.
The Navajo Nation participated, but it did so under
protest.10 Although the record is sparse, it shows that the
Navajo Nation engaged in ongoing dialogue with the Park
Service regarding the Nation’s objections to the NAGPRA
process and claims of ownership, and in 2007 the Park
Service withdrew a draft inventory. Due to the continuing
disagreement between the Park Service and the Navajo
Nation, the Department of the Interior, of which the Park
Service is a bureau, sought an opinion from its Office of the
Solicitor. In an April 2010 email, the Park Service informed
the Navajo Nation that Interior’s solicitor determined the
Park Service “must comply with NAGPRA” and continue to
inventory the remains and objects taken from Canyon de
Chelly National Monument. In a June 2011 inventory
consultation meeting between the Park Service and various
tribes, the Park Service restated the determination made by
Interior’s solicitor that the Park Service must “do NAGPRA
on Canyon de Chelly cultural resources.” The Navajo Nation
asked for a copy of the opinion, but the Park Service
responded that Interior’s solicitor “did not supply an official
opinion,” the opinion was “informally given,” and Interior
would not issue any more opinions on the subject. The
Navajo Nation sent a letter to the Park Service on August 9,
2011, stating its intent to sue if the Park Service did not cease
the inventory process and immediately return the remains and
objects. The Park Service responded with a letter, signed by
10
The Navajo continued to seek the immediate return of the objects
consistent with their belief that exhumation “causes illness[,] . . . damages
crops, natural ecosystems and the environment, and disrupts local and
global weather patterns.”
NAVAJO NATION V. USDOI 13
the Superintendent of Canyon de Chelly National Monument,
that cited the same opinion from Interior’s solicitor and
reiterated the position that the Park Service was “required by
law to complete the NAGPRA process for cultural items
excavated or removed from lands within” Canyon de Chelly
National Monument. By the time this letter was received, the
inventory process had been ongoing for approximately fifteen
years.
In December 2011, the Navajo Nation sued the Park
Service. The complaint alleged that the Park Sevice’s refusal
to immediately return the remains and objects violated the
Treaty of 1849, the Treaty of 1868, NAGPRA, ARPA, the
Administrative Procedure Act (APA), and the Fifth
Amendment to the United States Constitution. The district
court ruled that there had been no final agency action under
the APA, and it dismissed the suit as barred by sovereign
immunity. The Navajo Nation appealed.
STANDARD OF REVIEW
This court reviews de novo a district court’s dismissal for
lack of subject matter jurisdiction. Native Vill. of Kivalina v.
ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir. 2012).
DISCUSSION
“The United States, as sovereign, is immune from suit
save as it consents to be sued, and the terms of its consent to
be sued in any court define that court’s jurisdiction to
entertain the suit.” United States v. Sherwood, 312 U.S. 584,
586 (1941) (citations omitted). The Administrative Procedure
Act (APA) creates a comprehensive remedial scheme for
those allegedly harmed by agency action. See 5 U.S.C.
14 NAVAJO NATION V. USDOI
§§ 701–706. Section 702 of the APA waives sovereign
immunity for suits alleging wrongful agency action or
inaction. Id. § 702. It states:
A person suffering legal wrong because of
agency action, or adversely affected or
aggrieved by agency action within the
meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court
of the United States seeking relief other than
money damages and stating a claim that an
agency or an officer or employee thereof
acted or failed to act in an official capacity or
under color of legal authority shall not be
dismissed nor relief therein be denied on the
ground that it is against the United States . . . .
Id. Section 704 of the APA provides a right to judicial
review of any “final agency action for which there is no other
adequate remedy in a court.” Id. § 704.
The Park Service argues that the district court correctly
dismissed all claims for lack of jurisdiction because the Park
Service has not taken final agency action as to the disposition
of the remains and objects removed from Canyon de Chelly.
In other words, the Park Service contends that the Navajo
Nation seeks to interrupt the inventory process before the
Park Service has determined which tribe is culturally
affiliated with the remains and objects. The Navajo Nation
counters that the Park Service’s decision that NAGPRA
applies to the remains and objects was a final agency action
because that decision triggered the inventory process and
deprived the Navajo Nation of property rights the Nation
claims to enjoy under ARPA and various treaties.
NAVAJO NATION V. USDOI 15
We hold that the decision to apply NAGPRA to the
remains and objects constituted final agency action because
it was the consummation of the Park Service’s
decisionmaking process regarding which statutory scheme
would apply to determine the Navajo Nation’s property
interests in the remains and objects, and significant legal
consequences flow from the decision. Accordingly, we
reverse the district court’s judgment and remand for
consideration of the Navajo Nation’s claims challenging the
applicability of NAGPRA.
In Bennett v. Spear, the Supreme Court stated two
requirements for determining what constitutes a final agency
action under the APA. See 520 U.S. 154, 177–78 (1997).
“First, the action must mark the ‘consummation’ of the
agency’s decisionmaking process . . . .” Id. (quoting Chi. &
S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
(1948)). “[S]econd, the action must be one by which ‘rights
or obligations have been determined,’ or from which ‘legal
consequences will flow.’” Id. (quoting Port of Bos. Marine
Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.
62, 71 (1970)).
As to the first Bennett requirement, an agency’s
determination of its jurisdiction is the consummation of
agency decisionmaking regarding that issue. In Fairbanks
North Star Borough v. U.S. Army Corps of Engineers, the
Army Corps of Engineers determined that a tract of land
contained “waters of the United States” requiring the
landowner to receive a permit from the Corps before
developing the land. 543 F.3d 586, 589–90 (9th Cir. 2008).
We held that because there would be “[n]o further agency
decisionmaking” as to the presence of jurisdictional wetlands
on the property, the jurisdictional decision “mark[ed] the
16 NAVAJO NATION V. USDOI
consummation of the agency’s decisionmaking process as to
that issue.” Id. at 593.
Similarly here, the Park Service’s legal determination that
NAGPRA’s inventory requirements apply to the remains and
objects from Canyon de Chelly “mark[ed] the consummation
of the agency’s decisionmaking process as to that issue.” Id.
In response to the Navajo Nation’s inquiries, the Park Service
sent the Navajo Nation an email notifying it that Interior’s
solicitor determined the remains and objects to be subject to
NAGPRA’s inventory requirements. During an in-person
meeting, a Park Service official declined to provide a copy of
the informal opinion and made clear that no additional
decisionmaking would be forthcoming. The Park Service
refused the Navajo Nation’s request for a formal, written
opinion, replying that Interior’s solicitor’s opinion was
“informally given” and “[t]hat was the opinion they gave.”
On August 9, 2011, the Navajo Nation sent a letter to the Park
Service again requesting formal resolution of its request for
return of the items. In a letter dated September 7, 2011 and
signed by the Superintendent of Canyon de Chelly National
Monument, the Park Service issued its final response to the
demands of the Navajo Nation.
This written decision cited the prior opinion from
Interior’s solicitor and denied the Navajo Nation’s claim that
all the remains and objects be returned to the Navajo Nation
because they belonged to them by virtue of when and where
the remains were excavated. This communicated that the
objects collected before NAGPRA’s effective date would not
be returned prior to completion of the NAGPRA inventory
process, which necessarily meant that some of the remains
and objects might never be returned to the Navajo Nation,
that the six sets disinterred after the enactment of ARPA
NAVAJO NATION V. USDOI 17
would be subjected to the inventory process rather than being
immediately reinterred, and that no further explanation would
be forthcoming regarding NAGPRA’s applicability.
On this record, we have no trouble concluding that the
decision to follow Interior’s solicitor’s guidance and continue
inventorying the remains and objects consummated the Park
Service’s decisionmaking process as to the applicability of
NAGPRA. The dissent argues that the first Bennett
requirement is not satisfied because the Park Service is still
in the process of determining cultural affiliation of the
remains and objects pursuant to NAGPRA, overlooking that
the Navajo Nation argues that NAGPRA’s statutory scheme
does not apply to these objects at all. Contrary to the
dissent’s further assertions, we do not conclude that the Park
Service’s informal request to its lawyers for legal advice
regarding NAGPRA’s applicability was a final agency action.
Nor do we hold that delay and expense transform an
interlocutory decision into final agency action. It is the
agency’s decision to apply NAGPRA to these remains and
objects that constituted a final agency action.
The Park Service decision also meets the second Bennett
requirement because the decision determined the Navajo
Nation’s legal rights in the remains and objects, and legal
consequences flow from the decision. A federal agency’s
decision to apply NAGPRA is the agency’s legal
determination of its property rights in the relevant objects.
Under NAGPRA, the Park Service can only inventory the
remains and objects if it has “possession or control” over
them. 25 U.S.C. § 3003(a). As the district court recognized,
NAGPRA’s implementing regulations specify that possession
means “having physical custody . . . with a sufficient legal
interest to lawfully treat the objects as part of its collection
18 NAVAJO NATION V. USDOI
. . . .” 43 C.F.R. § 10.2(a)(3)(I) (emphasis added). Similarly,
control means “having a legal interest . . . sufficient to
lawfully permit the . . . Federal agency to treat the objects as
part of its collection . . . .” Id. § 10.2(a)(3)(ii) (emphasis
added). The regulations clarify that control may exist
“whether or not the [objects] are in the physical custody of
the . . . Federal agency.” Id.
The Navajo Nation contends that because its 1868 treaty
provides it with the “exclusive use and occupation” of
Canyon de Chelly, it owns the remains and objects that the
Park Service hopes to inventory. The Nation further argues
that the creation of the monument and the adoption of ARPA
reaffirm its ownership interest in the remains and objects and
that the Park Service has no legal interests sufficient to
trigger NAGPRA’s application.
In correspondence with the Navajo Nation, the Park
Service asserted that Interior’s solicitor determined that the
Park Service has “legal possession AND control under
NAGPRA.” Though the Park Service declined to provide a
copy of the solicitor’s opinion, its decision to apply
NAGPRA necessarily determined at least some of the Navajo
Nation’s property rights in the remains and objects.
The district court ruled that the Monument Act granted
the Park Service possession and control of the remains and
objects sufficient to trigger NAGPRA’s inventory process,
but NAGPRA applies only if the Park Service has legal
possession or control over the remains and objects. See 43
C.F.R. § 10.2(a)(3)(I)–(ii). For example, if remains and
objects were loaned to the Park Service, the regulatory
scheme dictates that the Park Service would have no legal
right of possession for purposes of NAGPRA. See id.
NAVAJO NATION V. USDOI 19
§ 10.2(a)(3)(I). It follows that the Park Service’s unexplained
decision to apply NAGPRA to the remains and objects
necessarily forecloses the Nation’s argument that it has
complete ownership of the remains and objects pursuant to its
treaty rights, and that the Monument Act and ARPA only
reaffirm its ownership interest. Further, as to the six sets of
remains disinterred after enactment of ARPA, the Park
Service’s decision that it had a legal interest sufficient to
lawfully permit it to treat the objects as part of its collection
for purposes of NAGPRA denied the Nation’s claim that
these sets were removed with its permission and on the
condition that they be immediately reinterred. Thus, the
decision to apply NAGPRA determined the Nation’s legal
interests in these remains, and legal consequences flowed
from the decision. Under Bennett, this decision constituted
final agency action.
The dissent asserts that the Park Service’s decision to
apply NAGPRA did not determine any legal rights, implying
that the regulatory definitions of the terms “possession” and
“control” apply only to museums. Not so. By their own
terms, the definitions apply to federal agencies. See 43
C.F.R. § 10.2(a)(3)(I) (explaining that “a museum or Federal
agency would not be considered to have possession” of
objects on loan’ (emphasis added)); id. § 10.2(a)(3)(ii)
(defining control as “having a legal interest . . . sufficient to
lawfully permit the museum or Federal agency to treat the
objects as part of its collection” (emphasis added)). This
reading is entirely consistent with the Park Service’s own
interpretation of the regulations.11
11
See NAGPRA Glo ssa ry, Nat’l Park Serv.,
http://www.nps.gov/nagpra/TRAINING/GLOSSARY.HTM (last visited
Mar. 9, 2016) (quoting 43 C.F.R. § 10.2(a)(3)(i)–(ii)).
20 NAVAJO NATION V. USDOI
The definitions of possession and control appear in a
subsection of the implementing regulations that address who
must comply. Id. § 10.2(a). After defining “Federal agency,”
“Federal agency official,” and “Museum,” the regulation
defines “possession” and “control” in separate subparagraphs.
Id. § 10.2(a)(1)–(3). In other paragraphs of this definitions
section, where the drafters wanted a subparagraph to apply
only to the term defined in the immediately preceding
paragraph, the drafters so indicated with a colon. See id.
§ 10.2(d)(2), (f)(2), (g)(5). By contrast, the definition of
“museum” concludes with a period. See id. § 10.2(a)(3). The
only way to read this structure consistently with the rest of
the regulation is to read “possession” and “control” to apply
to “Federal agency,” “Federal agency official,” and
“Museum.” See generally, Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts
161–65 (2012) (“Punctuation is a permissible indicator of
meaning.”). Finally, the dissent’s interpretation would read
the statute as using the words “possession” and “control” to
mean lawful possession and control when applied to museums
but mean only physical possession and control when applied
to federal agencies. Nothing in the regulatory scheme
suggests this result. See id. at 170–73 (“A word or phrase is
presumed to bear the same meaning throughout a text.”).
The dissent also asserts that because the NAGPRA
inventory process provides a method for determining ultimate
ownership of remains and objects, an Indian tribe’s property
interests in the remains and objects may only be determined
at NAGPRA’s conclusion. We read the sequence of events
in NAGPRA’s statutory scheme similarly as the dissent. But
the dissent’s position assumes away the threshold question of
whether NAGPRA’s statutory scheme applies in the first
place. Here, the Navajo Nation asserts a superior property
NAVAJO NATION V. USDOI 21
interest in the remains and objects deriving from treaties and
statutes that predate NAGPRA. We do not prejudge whether
the Nation’s attacks on NAGPRA’s applicability are correct,
we merely hold that the district court had jurisdiction to
consider them.
The dissent argues that Congress did not intend an agency
to make a legal determination of possession and control as a
part of the NAGPRA process. We agree. But because the
Navajo Nation has challenged the invocation of the NAGPRA
process, it is incumbent on the court to determine NAGPRA’s
applicability. Congress was clear that NAGPRA’s inventory
requirements only apply to “[e]ach Federal agency and each
museum which has possession or control” over remains and
objects. 25 U.S.C. § 3003(a). Section 10.2 of NAGPRA’s
implementing regulations answers the question “[w]ho must
comply with these regulations?” by defining “Federal
agency” and the terms “possession” and “control.” 43 C.F.R.
§ 10.2(a). The Park Service’s threshold determination that
NAGPRA applies is subject to judicial review.
The dissent separately argues that the Park Service’s
decision to apply NAGPRA does not satisfy the second
Bennett factor because the Navajo Nation could simply
choose not to participate in the NAGPRA process.12 But
12
Relatedly, the dissent argues the Navajo Nation’s claims can be
vindicated at the conclusion of NAGPRA and that the Nation will be made
whole if the remains and objects are eventually returned. This is only
partially correct. As explained, the remains and objects are sacred and
their continued disinterment is alleged to cause unique harm. Further, the
regulation the dissent cites for the proposition that superior property rights
can only be asserted at the conclusion of the NAGPRA process, 43 C.F.R.
§ 10.11(e), states that district courts may hear “any action brought that
22 NAVAJO NATION V. USDOI
NAGPRA requires the Park Service to complete its
inventories “in consultation with tribal government[s],”
25 U.S.C. § 3003(b)(1)(A), and to seek information from
tribes, including contact information for traditional religious
leaders and information about the “[k]inds of objects that the
[tribe] reasonably believes to have been made exclusively for
burial purposes or to contain human remains of their
ancestors.” 43 C.F.R. § 10.9(b)(4)(ii)–(iii). Here, the Park
Service has had several in-person meetings with tribal
officials to attempt to determine cultural affiliation of the
remains and objects. The dissent’s suggestion that the Nation
forego the right to consultation and attack the NAGPRA
process at its conclusion overlooks that by sitting on the
sidelines, the Nation would miss its best opportunity to
establish that the remains and objects are culturally affiliated
with the Navajo if the inventory process goes forward. The
dissent also overlooks the Navajo Nation’s assertion that it
suffers a continuing harm as long as the remains are
disinterred and not returned to their tribal lands.
The Park Service argues that the Navajo Nation’s claims
are unripe and that the Navajo Nation failed to exhaust
administrative remedies because the NAGPRA inventory
process is still ongoing, and the Park Service has not yet
decided which of the remains is culturally affiliated with
which tribe. But the Park Service’s argument is built on the
flawed premise that the Navajo Nation asserts only that the
remains should be repatriated to it pursuant to NAGPRA. In
fact, the Navajo Nation claims that NAGPRA does not apply
at all because the Navajo Nation, and not the Park Service,
has the right to immediately possess and control the remains
alleges a violation of [NAGPRA].” It says nothing about when such an
action may be brought.
NAVAJO NATION V. USDOI 23
and objects. The Navajo Nation asserts that this right to
immediate possession and control flows from the Navajo
Nation’s treaty right to “exclusive use and occupation” of
Canyon de Chelly. The Navajo Nation further asserts that
both the 1931 Act creating Canyon de Chelly National
Monument and ARPA confirm its right to immediate
possession and control.
Determining whether an agency’s decision is ripe for
review “requir[es] us to evaluate both the fitness of the issues
for judicial decision and the hardship to the parties of
withholding court consideration.” Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99, 97 (1977). Here, the Park
Service’s continued possession of the remains and objects
exacts a unique and significant hardship on the Navajo
Nation. The Navajo believe that exhumation “causes
illness[,] . . . damages crops, natural ecosystems and the
environment, and disrupts local and global weather patterns.”
By suing for return of the remains, the Navajo Nation seeks
to end the Park Service’s longstanding “exercise [of]
dominion and control over these remains and objects, among
the most sacred of the Nation’s property.” The question of
NAGPRA’s application is fit for review because it is a purely
legal question applied to discrete facts and significant legal
consequences flow from the decision. See id.
Further, the Navajo Nation has 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 fifteen 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. Their efforts yielded only
24 NAVAJO NATION V. USDOI
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.
Because both prongs of the Bennett test are met, we
reverse the district court’s order and remand for review of the
Navajo Nation’s claims challenging the applicability of
NAGPRA.13
REVERSED and REMANDED.
IKUTA, Circuit Judge, dissenting:
Congress mandated that the National Park Service (Park
Service) follow a process for identifying which tribes are
entitled to receive the human remains and archeological
artifacts removed from the Canyon de Chelly. That process,
codified in the Native American Graves Protection and
Repatriation Act (NAGPRA), provides for repatriation of
human remains and associated artifacts to their known
descendants. See 25 U.S.C. §§ 3001–3013. The Park Service
is slowly implementing the NAGPRA process with respect to
the human remains and artifacts in its possession. Its snail-
like progress is in part attributable to the ongoing resistance
of the Navajo Nation, which objects to Congress’s process,
13
Our decision moots the Navajo Nation’s remaining jurisdictional
arguments. We need not decide whether the Park Service “unlawfully
withheld” agency action within the meaning of 5 U.S.C. § 706(1). Nor do
we decide whether Congress waived sovereign immunity as to non-APA
claims challenging intermediate agency actions. See Gros Ventre Tribe
v. United States, 469 F.3d 801, 809 (9th Cir. 2006).
NAVAJO NATION V. USDOI 25
and has filed suit against the Park Service for an immediate
declaration that it owns all the human remains and artifacts
that were removed from the Canyon. Although the Navajo
Nation may be frustrated, a federal court cannot hear such an
action unless the United States has waived its sovereign
immunity under § 704 of the Administrative Procedure Act
(APA),1 which makes reviewable a “final agency action for
which there is no other adequate remedy in a court.” 5 U.S.C.
§ 704; Maj. op. at 13–14.
Despite the fact that the Park Service has not even come
close to taking a final agency action, today the majority
decides to take matters into its own hands. It selects virtually
at random one of the many steps in the Park Service’s
ongoing effort and claims it constitutes a final agency action,
Maj. op. at 16–17. Because this decision is contrary to both
the APA and our precedents, I dissent.
I
The Park Service’s slow-motion implementation of the
NAGPRA process mirrors the long history of the Canyon de
Chelly. The Canyon has been inhabited by humans for nearly
4,500 years and has been home to permanent settlements for
about 2,000 years. Starting around 750 A.D. the Canyon
became home to the ancient Pueblo, sometimes referred to as
the Anasazi. The ancient Pueblo remained in the Canyon
until about 1300, when they left to seek better farmlands.
Their descendants, the Hopi Indians, continued to live in the
Canyon until about 1600. The modern Zuni and Hopi Indians
1
Because the majority focuses on § 704 of the APA, I do not address
whether the Navajo Nation could maintain its action under 5 U.S.C. § 702.
26 NAVAJO NATION V. USDOI
are the descendants of the ancient Pueblo. The Navajos are
relative newcomers, arriving at the Canyon around 1700.
The federal government’s involvement in the collection
and preservation of human remains and artifacts from the
Canyon de Chelly dates back to 1906, when the Antiquities
Act, 54 U.S.C. § 320302 (1906), authorized federal agencies
to issue permits for the excavation and collection of
archaeological artifacts so long as they were preserved in
public museums. Under the authority of this act, the
Park Service removed and preserved some 297 sets of
human remains from the Canyon de Chelly. In 1979, the
Archaeological Resources Protection Act (ARPA), 16 U.S.C.
§§ 470aa–470mm (1979), added new permit requirements,
and the Park Service removed an additional six sets of
remains pursuant to a federal permit. In all, the Park Service
removed 303 sets of remains from the Canyon before
NAGPRA was enacted in 1990. The Park Service preserved
all 303 sets of remains at the Western Archaeology
Conservation Center in Tucson, Arizona.
It was not until 1990 that Congress enacted NAGPRA,
which “provides a framework for establishing ownership and
control of (1) newly discovered Native American remains and
funerary objects (collectively ‘cultural items’) and (2) cultural
items already held by certain federally funded museums and
educational institutions.” White v. Univ. of Cal., 765 F.3d
1010, 1016 (9th Cir. 2014) (citing 25 U.S.C. §§ 3001–3013);
see also 43 C.F.R. § 10.1. With respect to pre-existing
collections of human remains and artifacts, NAGPRA
requires federal agencies and museums with “possession or
control over [such] holdings or collections” to “compile an
inventory” of the items and “identify the geographical and
cultural affiliation of such item[s]” where possible. 25 U.S.C.
NAVAJO NATION V. USDOI 27
§ 3003(a). Once the federal agency or museum has identified
the cultural affiliation of the object, it must notify the affected
tribes and publish a public notice in the Federal Register. Id.
§ 3003(d).
After the cultural affiliation process is complete, Native
American human remains and associated artifacts must be
expeditiously repatriated to “a known lineal descendant of the
Native American” or of the affected tribe, upon request of
that descendant or tribe. Id. § 3005(a)(1). Other cultural
artifacts may be returned to individuals or tribes that “owned
or controlled” the items. Id. § 3005(a)(5). An agency may
retain artifacts only if it has the “right of possession,”
meaning that the items were “obtained with full knowledge
and consent of the next of kin or the official governing body”
of the relevant tribe. Id. §§ 3001(13), 3005(c).
The regulations provide a robust dispute resolution
process to address disagreements about the implementation
of NAGPRA or the disposition of cultural artifacts. A
federal agency’s “final denial of a request . . . for the
repatriation or disposition of human remains [and cultural
objects] brought under, and in compliance with [NAGPRA]
constitutes a final agency action under the Administrative
Procedure Act (5 U.S.C. 704).” 43 C.F.R. § 10.1(b)(3).
When there are multiple requests for repatriation, and the
competing claimants cannot resolve their dispute through
informal negotiations, they may bring an action in district
court. Id. §§ 10.10(c)(2), 10.11(e), 10.17. Further, a party
claiming legal property rights to the human remains or
artifacts that supersede NAGPRA can vindicate those claims
in court. Id. § 10.11(e)(3).
28 NAVAJO NATION V. USDOI
As mandated by NAGPRA, the Park Service started the
inventory process for all 303 sets of remains in the mid-
1990s. Pursuant to § 3003(a), the Park Service began
consulting with the Navajo Nation, Hopi, and Zuni regarding
the cultural affiliation of the remains. 25 U.S.C.
§ 3003(b)(1)(A). By 1996 the Park Service had compiled a
draft inventory, which it shared with the participating tribes.
The draft inventory identified some of the remains as
belonging to ancestral Puebloans. Under NAGPRA, such a
finding would generally require the Park Service to return the
remains to the Hopi and Zuni Tribes, the known lineal
descendants of the Puebloans, upon their request. Id.
§ 3005(a).
After the Park Service circulated the draft inventory, the
Navajo Nation objected to the NAGPRA process and claimed
that all “human remains and funerary objects” found in the
Canyon de Chelly are “property of the Navajo Nation” by
virtue of the Navajo’s land ownership. The Park Service
stated it would respond to “any requests for repatriation in
strict accordance with the NAGPRA.” This response did not
satisfy the Navajo Nation. Faced with the Navajo Nation’s
resistance, the Park Service put the inventory process on hold.
In 2010, the Park Service asked lawyers at the Division of
Parks and Wildlife and Division of Indian Affairs for advice.
The Park Service’s lawyers informally confirmed that for
purposes of NAGPRA, the Park Service had possession and
control of the items that had been removed from the Canyon
de Chelly and that these archeological resources were not
exempt from NAGPRA’s repatriation procedures. Therefore,
according to the lawyers, the Park Service was bound to
comply with the procedure set forth in the statute and
regulations. This advice was provided informally; the Park
NAVAJO NATION V. USDOI 29
Service later explained that it takes at least three years to
obtain an official legal opinion. In June 2011, the Park
Service informed the Navajo Nation about the informal
advice of its lawyers and its intention to move forward with
the NAGPRA process.
Two months later, the Navajo Nation sent a formal
demand letter to the Park Service and threatened to sue unless
the Park Service turned over all human remains and artifacts
to the Navajo Nation immediately. In its response on
September 7, 2011, the Park Service stated that its position
remained that it was required by law to complete the
NAGPRA process. It hoped that the Navajo Nation would
develop an agreement with the Hopi and Zuni Pueblo tribes
so that they “would have more consistent input into the [Park
Service’s] final decision” regarding repatriation of the
remains. The letter also stated the Park Service’s hope that
the Navajo Nation would not engage in litigation, which
would cause further delays. The Park Service concluded by
stating that it continued “to believe that we can work through
our differences in a cooperative and collaborative manner.”
The Navajo Nation then initiated this lawsuit.
II
A review of the applicable law makes clear that no event
in the Park Service’s implementation of NAGPRA to date
constituted a final agency action.
To be final for purposes of § 704, an agency action must
satisfy two requirements. First, the agency action “must mark
the ‘consummation’ of the agency’s decisionmaking process
. . . it must not be of a merely tentative or interlocutory
nature.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
30 NAVAJO NATION V. USDOI
(internal citation omitted). Second, “the action must be one
by which rights or obligations have been determined, or from
which legal consequences will flow.” Id. at 178 (internal
quotations omitted). The elements of both Bennett prongs
have been clearly delineated.
For an action to “mark the consummation of the agency’s
decisionmaking process” under the first Bennett prong, there
must be an established “formal procedure,” Fairbanks N.
Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586,
592–93 (9th Cir. 2008), in which the agency “evaluate[s] the
merits of [the issue] to arrive at a reasoned, deliberate
decision,” see ONRC Action v. Bureau of Land Management,
150 F.3d 1132, 1136 (9th Cir. 1998). A final decision must
establish an official position that is “considered, definite and
firm,” Fairbanks, 543 F.3d at 593, and constitutes the
agency’s “last word on the matter,” Or. Nat. Desert Ass’n v.
U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006). A
federal agency’s informal recommendation or assessment is
not a final agency action. See City of San Diego v. Whitman,
242 F.3d 1097, 1101–02 (9th Cir. 2001); Aminoil U.S.A., Inc.
v. Cal. State Water Res. Control Bd., 674 F.2d 1227, 1231
(9th Cir. 1982). Nor is an agency’s notice of its plans to
make a decision in the future. See Gen. Atomics v. U.S.
Nuclear Regulatory Comm’n, 75 F.3d 536, 540 (9th Cir.
1996); Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 263–64
(9th Cir. 1990). As a practical matter, this means that final
agency decisions are virtually always written and generally
published. See, e.g., Sackett v. EPA, 132 S. Ct. 1367,
1370–72 (2012) (formal, written EPA compliance order); Or.
Nat. Desert Ass’n, 465 F.3d at 979–80 (written annual
operating instructions, which functioned as a grazing permit,
issued to Forest Service permit holders); Bennett, 520 U.S. at
NAVAJO NATION V. USDOI 31
177–78 (written Biological Opinion provided by the Fish and
Wildlife Service).
To satisfy the second Bennett prong, an agency’s decision
must have the force and effect of law and be binding on the
plaintiff. The decision must require the plaintiff to do or
forbear from some action, see Fairbanks, 543 F.3d at 593,
such that the plaintiff’s only choice is whether to comply with
or defy a legal requirement, see FTC v. Standard Oil Co. of
Cal., 449 U.S. 232, 239–40 (1980). An expression of the
agency’s view regarding what the law requires is not enough,
Fairbanks, 543 F.3d at 594, nor is a decision that a statute
applies to an activity or individual, see Hale v. Norton,
476 F.3d 694, 697 (9th Cir. 2007) (holding that a Park
Service decision that landowners were subject to permit
requirements was not a final agency action under Bennett);
Hecla Mining Co. v. EPA, 12 F.3d 164, 165–66 (9th Cir.
1993) (holding that the decision to include a river and mine
on the lists subjecting them to permit requirements “is not the
final agency action necessary to state a cause of action under
§ 704 of the APA”).
Further, the agency’s decision must have legal and not
merely practical consequences. It is well established that
agency actions subjecting the plaintiff to a “greater risk of
increased fines,” an “onerous administrative maze,” or further
agency proceedings are not final, as these are practical
effects, not legal consequences. Fairbanks, 543 F.3d at
595–96. Even an agency decision that causes immediate
financial impacts or triggers profound economic
consequences is not final under the second Bennett prong, as
these too are merely practical effects. See id. Rather, an
agency’s decision is final if it has tangible legal consequences
32 NAVAJO NATION V. USDOI
or otherwise alters the legal relationship between the parties.
Id. at 594.
III
The Park Service’s continuation of the NAGPRA
inventory process meets neither of the Bennett prongs and so
is not a final agency action.
First, there has been no “consummation” of any
decisionmaking process. The majority asserts that “the [Park
Service’s] decision to apply NAGPRA to these remains and
objects . . . constituted a final agency action.” Maj. op. at 17.
But the Park Service decided that NAGPRA was applicable
to its 303 sets of remains two decades ago, when it
commenced the NAGPRA process. The Park Service’s long-
ago decision to comply with NAGPRA did not mark the
“consummation” of any decisionmaking process, but rather
its beginning. See Hale, 476 F.3d at 697; Hecla Mining Co.,
12 F.3d at 165–66 (holding that an agency’s decision to
initiate regulatory proceedings does not constitute a final
agency action because it is “merely preliminary”).
Nor did the Park Service’s 2010 request to its lawyers for
confirmation that NAGPRA applied constitute a final
determination of the Park Service’s jurisdiction. The
informal request occurred some 15 years after the Park
Service began applying NAGPRA, and merely represented
the continuation of the NAGPRA process. See ONRC Action,
150 F.3d at 1136. Indeed, if an agency is deemed to take a
“final agency action” every time it asks its lawyers whether
it is following the law, agencies will either be subject to
challenge regarding every internal, interlocutory decision—or
will have to banish government lawyers from every
NAVAJO NATION V. USDOI 33
government building. The Supreme Court rejected such a
result in Bennett, holding that it was “loathe” to permit
review of every procedural step taken by an agency,
especially those “that had not yet resulted in a final
disposition of the matter at issue.” 520 U.S. at 174.
Likewise, the Park Service’s September 2011 letter to the
Navajo Nation merely reiterated that “[t]he position of the
[Park Service] and the advice of our solicitors . . . remains
that we are required by law to complete the NAGPRA
process.” (emphasis added). While the majority characterizes
this letter as a “final response to the demands of the Navajo
Nation,” Maj. op at 16, nothing in the letter suggests it is
anything more than another response in the ongoing dialogue
with the Navajo Nation.
In short, no case identified by the Navajo Nation or the
majority comes close to suggesting that an agency’s decision
to stay the course, bolstered by informal advice from counsel,
constitutes the “consummation of the agency’s
decisionmaking process.”2 There is nothing in the record
resembling the formal Biological Opinion at issue in Bennett,
520 U.S. at 177, or the written grazing permit addressed in
ONDA, 465 F.3d at 980. There is thus no support for the
majority’s claim that the Park Service’s decision to continue
with the NAGPRA process after obtaining its lawyers’ advice
marked the consummation of the Park Service’s
2
The Navajo Nation argues that Bonnichsen v. United States is such a
case. 367 F.3d 864 (9th Cir. 2004). Its reliance is misplaced because that
opinion did not address whether the decision to apply NAGPRA to
remains that were possibly non-Indian was a final agency action. Rather,
the issue of finality was decided by the district court and not appealed.
See Bonnichsen v. U.S. Dept. of the Army, 969 F. Supp. 628, 637–38 (D.
Ore. 1997).
34 NAVAJO NATION V. USDOI
decisionmaking process regarding its jurisdiction. Maj. op.
at 16–17.
The second Bennett factor is also lacking here. The Park
Service’s decision to proceed with the NAGPRA process
does not impose any obligation on the Navajo Nation, and so
is not “one by which rights or obligations have been
determined or from which legal consequences will flow.”
Bennett, 520 U.S. at 178 (internal quotation marks and
punctuation omitted). The Navajo Nation is not put to the
choice of compliance or defiance with any requirement, see
Standard Oil, 449 U.S. at 239–40; rather, it is free to decline
to participate in the inventory process. See 25 U.S.C.
§ 3003(b); 43 C.F.R. § 10.9(b).3 The Park Service’s decision
to move forward may indeed have practical effects, in that it
will delay vindication of the Navajo Nation’s alleged
entitlement to the human remains and artifacts and will
impose some costs if the Navajo Nation chooses to participate
in the NAGPRA process. And while the Navajo Nation’s
decision not to participate in the NAGPRA process may also
have practical effects, see Maj. op. at 21–22, a practical
burden is not a legal burden, and any additional delay and
expense are insufficient to make an agency decision final
even if they turn out to be quite substantial. See Standard
Oil, 449 U.S. at 242 (“Although [the burden of responding to
agency enforcement] certainly is substantial, it is different in
kind and legal effect from the burdens attending what
heretofore has been considered to be final agency action.”).
3
While NAGPRA requires that the Park Service seek to consult with
tribal governments during the cultural affiliation process, see Maj. op. at
21–22; 25 U.S.C. § 3003(b)(1)(A); 43 C.F.R. § 10.9(b)(4), nothing in
NAGPRA requires the Navajo Nation to cooperate.
NAVAJO NATION V. USDOI 35
The majority claims that the Park Service’s decision to
continue with the NAGRPA inventory process “necessarily
meant that some of the remains and objects might never be
returned to the Navajo Nation,” Maj. op. at 16, and
“necessarily forecloses the Nation’s argument that it has
complete ownership of the remains and objects pursuant to its
treaty rights,” Maj. op. at 19. The majority is simply
mistaken. Once the NAGPRA process is complete, the
Navajo Nation will be free to raise all the claims it brings
today—including its challenges to the disposition of the
human remains and artifacts, its claim that the Park Service
breached an agreement to re-inter six sets of remains, see
Maj. op. at 19, and its argument that it has legal property
rights in the items that supersede the NAGPRA process. See
43 C.F.R. §§ 10.10(c)(2); 10.11(e).4
The majority’s theory that the Park Service made a
reviewable “threshold determination” of its property rights in
the remains and artifacts before applying NAGPRA, Maj. op.
at 19–21, is completely backwards. Neither NAGPRA nor its
implementing regulations require a federal agency to formally
and finally determine whether it has “possession or control
over” Native American artifacts before instituting the
NAGPRA process. See 25 U.S.C. § 3003; 43 C.F.R. § 10.2.
4
The majority mischaracterizes 43 C.F.R. § 10.11(e) by claiming that
it “says nothing about when such an action may be brought.” Maj. op. at
21–22 n.12. By its own terms, § 10.11 applies to disputes “regarding the
disposition of culturally unidentifiable human remains and associated
funerary objects,” 43 C.F.R. § 10.11(e) (emphasis added), that arise after
the NAGPRA inventory process is complete, id. § 10.11(a) (“This section
. . . applies to human remains previously determined to be Native
American under § 10.9, but for which no lineal descendant or culturally
affiliated Indian tribe or Native Hawaiian organization has been
identified.”).
36 NAVAJO NATION V. USDOI
To the contrary, it is a federal agency’s decision that
NAGPRA is not applicable which is deemed to be a final
agency action subject to review. 43 C.F.R. § 10.1(b)(3). An
agency’s decision that it has the requisite possession and
control of human remains and artifacts to apply NAGPRA is
not final or reviewable until after the inventory process is
complete. See id. §§ 10.1(b)(3), 10.10(c). Nor can we infer
that Congress intended an agency to make a formal
determination of its legal rights to human remains and
artifacts before applying NAGPRA. Congress knew how to
require a determination of ownership rights when it wanted
one, as NAGPRA expressly provides guidance for
determining the “ownership or control” of Native American
cultural items excavated after 1990, 25 U.S.C. § 3002(a), and
establishes a process for determining whether agencies or
museums have a “right of possession” to objects in their
collections, id. § 3005(c). Both of these determinations are
made at the end of the NAGPRA process, along with all the
other repatriation decisions. Nothing in NAGPRA requires
the threshold determination that the majority relies on, and
Congress’s omission of such a provision indicates that it did
not want any such threshold determination to occur.
The majority nonetheless claims that § 10.2 of the
regulations requires the Park Service to ascertain whether it
has a legal interest in the remains or artifacts before it starts
the NAGPRA process. Maj. op. at 19–21. By its terms,
however, § 10.2 merely defines the term “museum,” and
provides a safe harbor for museums that have borrowed
cultural items from a third party.5 The applicability of this
5
Section 10.2 answers the question “Who must comply with these
regulations?” as: “federal agency,” “federal agency official,” and
“museum.” 43 C.F.R. § 10.2(a)(1)–(3). “Museum” is defined as “any
NAVAJO NATION V. USDOI 37
regulation is therefore irrelevant for present purposes: only a
museum’s decision that it did not have possession or control
of the items in its collection would be subject to immediate
legal review, id. § 10.1(b)(3), while a museum’s decision to
apply NAGPRA would be reviewable only at the end of the
process, see id. §§ 10.1(b)(3), 10.10(c).
Here, the relevant question is who is entitled to obtain the
human remains and artifacts currently in the Park Service’s
hands, and that is the very question which NAGPRA is
designed to answer. The Navajo Nation’s claims to the
human remains and artifacts are not superior on their face to
the claims of the Hopi and Zuni Tribes, and federal law
requires the Park Service to proceed through a step-by-step
process for making these cultural affiliation and repatriation
determinations. The Navajo Nation’s desire to short-circuit
institution or State or local government agency (including any institution
of higher learning) that has possession of, or control over, human remains,
funerary objects, sacred objects, or objects of cultural patrimony and
receives Federal funds.” Id. § 10.2(a)(3) (emphasis added). In three
subsections under the definition of museum, the regulations define each
of the key terms in that definition: “possession,” id. § 10.2(a)(3)(i),
“control,” id. § 10.2(a)(3)(ii), and “receives Federal funds,” id.
§ 10.2(a)(3)(iii). The definition of “possession,” as used in the definition
of “museum,” is “having physical custody 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 for
purposes of these regulations.” Id. § 10.2(a)(3)(i). The regulation then
explains that “[g]enerally, a museum or Federal agency would not be
considered to have possession of human remains, funerary objects, sacred
objects, or objects of cultural patrimony on loan from another individual,
museum, or Federal agency.” Id. Because this language is included as
part of the definition of “museum,” it provides a safe harbor for museums
that do not want to engage in the expense of applying NAGPRA to items
that are on loan from a third party, but would face penalties under § 10.2
if they failed to implement the NAGPRA process as required by statute.
38 NAVAJO NATION V. USDOI
Congress’s plan is not sufficient to transform that ongoing
process into a “final agency action.”
IV
In sum, 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. The
majority’s strained attempt to detect a “final agency action”
occurring at some point along the way, without a
decisionmaking 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. Because
there is no final agency action reviewable under § 704, the
United States has not waived its sovereign immunity and we
lack jurisdiction to hear this appeal. Accordingly, I dissent.