UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________ No. 13-15710 ____________________ NAVAJO NATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR, SALLY JEWEL, in her official capacity as SECRETARY OF THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, JONATHAN B. JARVIS, in his official capacity as DIRECTOR OF THE NATIONAL PARK SERVICE, and TOM O. CLARK, in his official capacity as PARK SUPERINTENDENT, CANYON DE CHELLY NATIONAL MONUMENT, Defendants-Appellees ___________________ OPENING BRIEF OF PLAINTIFF-APPELLANT NAVAJO NATION ___________________ NAVAJO NATION DEPARTMENT FRYE LAW FIRM, P.C. OF JUSTICE Paul E. Frye Harrison Tsosie, Attorney General William Gregory Kelly Paul Spruhan, Assistant Attorney General 10400 Academy Rd. NE P.O. Drawer 2010 Suite 310 Window Rock, AZ 86515 Albuquerque, NM 87111 928-871-6343 505-296-9400 Attorneys for Navajo Nation ____________________ Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 1 of 73
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UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
____________________
No. 13-15710____________________
NAVAJO NATION,Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR,SALLY JEWEL, in her official capacity as SECRETARY OF THE
DEPARTMENT OF THE INTERIOR, NATIONAL PARKSERVICE, JONATHAN B. JARVIS, in his official capacity as
DIRECTOR OF THE NATIONAL PARK SERVICE, and TOM O. CLARK, in his official capacity as PARK SUPERINTENDENT,
CANYON DE CHELLY NATIONAL MONUMENT,Defendants-Appellees
___________________
OPENING BRIEF OF PLAINTIFF-APPELLANTNAVAJO NATION
___________________
NAVAJO NATION DEPARTMENT FRYE LAW FIRM, P.C. OF JUSTICE Paul E. FryeHarrison Tsosie, Attorney General William Gregory KellyPaul Spruhan, Assistant Attorney General 10400 Academy Rd. NEP.O. Drawer 2010 Suite 310Window Rock, AZ 86515 Albuquerque, NM 87111928-871-6343 505-296-9400
II. THE TREATIES, STATUTES, REGULATIONS, AND AGREEMENTSMUST ALL BE CONSTRUED GENEROUSLY IN FAVOR OF THE NAVAJO NATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III. NAGPRA DOES NOT APPLY TO THESE RESOURCES TAKEN FROM THE NATION’S LANDS PRIOR TO 1990 AND NPS DOES NOT HAVE POSSESSION OR CONTROL OF THEM UNDER NAGPRA; ARPA CONFIRMS THE NATION’S OWNERSHIP AND CONTROL OF THE RESOURCES, AND ANY FINAL AGENCY ACTION REQUIREMENT IS SATISFIED. . . . . . . . . . . . . . 18
A. ARPA and NAGPRA State the Same Federal Rule that Archaeological Resources Removed from Tribal Lands AreOwned and Controlled by the Tribal Landowner. .. . . . . . . . . . . . . 18
1. Ownership and Control of Archaeological ResourcesRemoved from Tribal Lands Before November 17, 1990Are Determined Pursuant to ARPA. . . . . . . . . . . . . . . . . . . . 18
2. NAGPRA Would Determine Ownership and Control of Only Certain Archaeological Resources Removed from Tribal Lands after November 16, 1990, but It NonethelessConfirms the Nation’s Ownership and Control of TheseResources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. ARPA and NAGPRA Are in Harmony, and This Court Should Give Effect to Both Statutes. . . . . . . . . . . . . . . . . . . . 22
B. ARPA and NAGPRA Confirm the Nation’s Ownership of the Resources and Defeat NPS’s Claim of a Legal Interest in Them. .. 28
2. The Monument Act Confirmed the Nation’s TreatyRights and Conferred No Legal Interest to NPS Sufficient to Apply NAGPRA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3. Lacking Both a Legal Interest in the Nation’s ArchaeologicalResources and the Nation’s Consent, NPS’s Attempt to Apply the NAGPRA Disposition Process Violates both NAGPRA and ARPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
C. NPS’s Decision to Apply the NAGPRA Cultural Affiliation Processto the Resources Is Final Agency Action Under the APA. . . . . . . . 36
D. Any Requirement for Final Agency Action Under the APA Is Also Satisfied by the Unlawful Withholding of Agency Action Under ARPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
IV. THE DISTRICT COURT IMPROPERLY DISMISSED OR IGNOREDTHE NATION’S CONSTITUTIONAL AND TRUST CLAIMS FORWHICH SOVEREIGN IMMUNITY HAS BEEN WAIVED. . . . . . . . . . 43
A. Because NPS Admits That It Has Property Taken From Canyonde Chelly In Its Physical Custody, Refused to Return It to theNation, and Insists on Applying NAGPRA to Dispose of It, theNation Pled a Cognizable Constitutional Claim. . . . . . . . . . . . . . . 43
1. The Nation Has a Protected Property Interest in theArchaeological Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2. The District Court Improperly Adopted, Rather thanAvoided, a Construction of the Monument Act that RaisesSerious Constitutional Issues. .. . . . . . . . . . . . . . . . . . . . . . . 46
3. 5 U.S.C. § 702 Waives the Government’s Sovereign Immunity for the Nation’s Non-APA Claims, Includingits Constitutional Claim, Trust Claim, and Claims Under Other Federal Statutes. . . . . . . . . . . . . . . . . . . . . . . . 48
B. The APA Also Waives Federal Sovereign Immunity for theNation’s Trust Claim, and the District Court ErroneouslyDismissed this Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Treaty Between the United States of America and the Navajo Tribe of Indians/With a Record of the Discussions that Led to Its Signing (KC Publications 1968) (Library of Congress Control No. 68-029989). . . . . . . 8
Excerpts from the Monument History are reproduced at Add. 65-80, which3
is available at http://www.nps.gov/cach/historyculture/upload/CACH_adhi.pdf.Judicial notice of the historical facts stated in this NPS document is requested andappropriate under Fed. R. Evid. 201(d). See, e.g., Aramark Facility Serv. v. ServiceEmployees Int’l U., 530 F.3d 817, 826 & n.4 (9th Cir. 2008).
9
Navajo creation beliefs and ceremonies. Compl. ¶ 11, NNRE 33.
As contemplated by Article IX of the 1850 Treaty, Articles II and XIII of the
1868 Treaty delineate and set apart the Navajo territory. They provide specifically
that “all [of Canyon de Chelly] is to be included in this reservation” and that the
Navajos would make the reservation their permanent home. Add. 5, 8.
In 1925, the Government initiated discussions with the Navajo Tribal Council
(“Council”) about the establishment of a national monument at Canyon de Chelly.
David Brugge, et al., Administrative History: Canyon de Chelly National Monument
Arizona (“Monument History”), at 7-8 (NPS 1976), Add. 70-71; see Compl. ¶ 8,
NNRE 18. The federal Commissioner of the Navajo Tribe, H. J. Hagerman, assured3
the Council that
The title would not be taken away in any way from the Indians or theirtreaty rights interfered with, but it would be merely set aside andprotected as a monument national park so that the ruins would bepreserved and outsiders would be prevented from going in and lootingthe ruins.
Add. at 71 (emphasis added).
On July 8, 1930, Hagerman read sections 2 and 3 of the draft Monument Act
to the Council. Commissioner Hagerman again assured the Council that the Nation’s
treaty rights were fully protected. Add. 74. After approval by the Council, the
Monument Act included within the Monument’s boundaries Canyon de Chelly,
Canyon del Muerto and Monument Canyon, and lands within one-half mile of the
rims of those canyons. See 16 U.S.C. § 445. The Monument Act provides 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 land and
minerals . . . except as defined in section 445b of this title.” Id. § 445a. In turn,
section 445b provides that NPS,
under the direction of the Secretary of the Interior, is charged with theadministration of the area so far as it applies to the care, maintenance,preservation and restoration of the prehistoric ruins, or other featuresof scientific or historical interest within the area, and shall have theright to construct upon the lands such roads, trails, or other structuresor improvements as may be necessary in connection with theadministration and protection of the monument, and also the right toprovide facilities of any nature whatsoever required for the care andaccommodation of visitors to the monument.
16 U.S.C. § 445b (emphases added).
Noting that the Navajo Tribal Council had given its consent to the Monument
Act, both the House and Senate Committees on Indian Affairs reported that Canyon
de Chelly was wholly within the Navajo Indian Reservation, contained no allotments
or private holdings, had “the most important ruins so far discovered in the
agencies such as NPS have no power to abrogate any fundamental rights of an Indian
tribe. United States v. Washington, 641 F.2d 1368, 1371 (9th Cir. 1981), cert.
denied, 454 U.S. 1143 (1982); Timpanogos Tribe v. Conway, 286 F.3d 1195, 1203
(10th Cir. 2002). Only Congress has that power, and its intent to do so must be
expressed with clarity because “Indian treaty rights are too fundamental to be easily
cast aside.” United States v. Dion, 476 U.S. 734, 739 (1986).
III. NAGPRA DOES NOT APPLY TO THESE RESOURCES TAKENFROM THE NATION’S LANDS PRIOR TO 1990 AND NPS DOES NOTHAVE POSSESSION OR CONTROL OF THEM UNDER NAGPRA;ARPA CONFIRMS THE NATION’S OWNERSHIP AND CONTROLOF THE RESOURCES, AND ANY FINAL AGENCY ACTIONREQUIREMENT IS SATISFIED.
A. ARPA and NAGPRA State the Same Federal Rule thatArchaeological Resources Removed from Tribal Lands Are Ownedand Controlled by the Tribal Landowner.
1. Ownership and Control of Archaeological Resources Removedfrom Tribal Lands Before November 17, 1990 Are DeterminedPursuant to ARPA.
All of the archaeological resources at issue were taken by NPS before 1990.
Compl. ¶ 37, NNRE 38. ARPA confirms the Nation’s ownership and control of
these resources.
ARPA was enacted in 1979 to protect archaeological resources on Indian lands
and public lands and to foster increased cooperation between governmental
authorities and other parties. See 16 U.S.C. § 470aa. ARPA provides that
The Secretary of the Interior may promulgate regulations providingfor—
(1) the exchange, where appropriate, between suitable universities,museums, or other scientific or educational institutions, ofarchaeological resources removed from public lands and Indian landspursuant to this chapter, and
(2) the ultimate disposition of such resources and other resourcesremoved pursuant to the Act of June 27, 1960 (16 U.S.C. 469–469c) [16U.S.C. 469–469c–1] or the Act of June 8, 1906 (16 U.S.C. 431–433).
Any exchange or ultimate disposition under such regulation ofarchaeological resources excavated or removed from Indian lands shallbe subject to the consent of the Indian or Indian tribe which owns orhas jurisdiction over such lands. Following promulgation of regulationsunder this section, notwithstanding any other provision of law, suchregulations shall govern the disposition of archaeological resourcesremoved from public lands and Indian lands pursuant to this chapter.
16 U.S.C. § 470dd (emphasis added).
ARPA’s Uniform Regulations were promulgated in 1984, “establishing the
uniform definitions, standards, and procedures to be followed by all Federal land
managers in providing protection for archaeological resources, located on public
lands and Indian lands.” 43 C.F.R. § 7.1 (emphasis added). The Uniform
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,” 43 C.F.R. § 7.13(b) (emphasis added), while
“[a]rchaeological resources excavated or removed from the public lands remain the
All of these categories of cultural items are also covered by the term4
“archaeological resources” under ARPA, if they are at least 100 years old. See 16U.S.C. § 470bb(1); 43 C.F.R. § 7.3(a).
20
property of the United States,” id. at 7.13(a) (emphasis added). “Indian lands means
lands of Indian tribes, or Indian individuals, which are either held in trust by the
United States or subject to a restriction against alienation imposed by the United
States, except for subsurface interests not owned or controlled by an Indian tribe or
Indian individual.” Id. at § 7.3(e). “Public lands” include “[l]ands which are owned
and administered by the United States as part of the national park system.” Id. at
§ 7.3(d). “Indian lands” are not “public lands.” See Bennett County v. United States,
394 F.2d 8, 11 (8th Cir. 1968); 34 U.S. Op. Atty. Gen. 181 (1924) (concerning
Executive Order Indian reservations) (per Harlan Fiske Stone).
2. NAGPRA Would Determine Ownership and Control of OnlyCertain Archaeological Resources Removed from Tribal Landsafter November 16, 1990, but It Nonetheless Confirms theNation’s Ownership and Control of these Resources.
NAGPRA provides a “priority” process for determining ownership or control
of five categories of archaeological resources, termed “cultural items” under
NAGPRA, including human remains, associated funerary objects (“AFOs”),
unassociated funerary objects, sacred objects, and cultural patrimony, where such4
archaeological resources were removed from tribal or federal lands after the
The ownership or control of Native American cultural items which areexcavated or discovered on Federal or tribal lands after November 16,1990, shall be (with priority given in the order listed) —
(1) in the case of Native American human remains and associatedfunerary objects, in the lineal descendants of the Native American; or
(2) in any case in which such lineal descendants cannot be ascertained,and in the case of unassociated funerary objects, sacred objects, andobjects of cultural patrimony—
(A) in the Indian tribe or Native Hawaiian organization on whose triballand such objects or remains were discovered;
(B) in the Indian tribe or Native Hawaiian organization which has theclosest cultural affiliation with such remains or objects and which, uponnotice, states a claim for such remains or objects; or
(C) if the cultural affiliation of the objects cannot be reasonablyascertained and if the objects were discovered on Federal land that isrecognized by a final judgment of the Indian Claims Commission or theUnited States Court of Claims as the aboriginal land of some Indiantribe—
(1) in the Indian tribe that is recognized as aboriginally occupying thearea in which the objects were discovered, if upon notice, such tribestates a claim for such remains or objects, or
(2) if it can be shown by a preponderance of the evidence that adifferent tribe has a stronger cultural relationship with the remains orobjects than the tribe or organization specified in paragraph (1), in theIndian tribe that has the strongest demonstrated relationship, if uponnotice, such tribe states a claim for such remains or objects.
25 U.S.C. § 3002(a) (emphases added). NAGPRA thus states the common-sense rule
Valley Authority jointly develop the Uniform Regulations. See 43 C.F.R. § 7.2(a).As recently as 2004, the office of General Counsel for the Department of Defense(“DoD”) interpreted the relevant provisions of ARPA and NAGPRA in pari materia,advising DoD that tribal consent is required under ARPA, 16 U.S.C. § 470dd(2),“[w]hen determining disposition of archaeological items removed from Indianlands,” and is also required under NAGPRA, 25 U.S.C. § 3002(c)(2) “[b]eforeremoving Native American human remains or cultural items from tribal lands.”Department of Defense Trust Responsibility and Consultation Matrix, available athttp://www.denix.osd.mil/na/upload/Trust-Responsibility-Matrix.pdf
25
lands remain the property of the Indian or Indian tribe having rights of ownership
over such resources, and who, as stated in ARPA, determine the appropriate
treatment”), Add. 38 (emphasis added).
ARPA and NAGPRA are in harmony and confirm the same unremarkable
federal rule that archaeological resources from Indian lands (like other resources) are
owned and controlled by the Indian landowner. See 25 U.S.C. § 3002(a); 16 U.S.C.
§ 470dd; 43 C.F.R. § 7.13(b); 43 C.F.R. § 10.6(a) (2011); Attakai v. United States,
746 F. Supp. 1395, 1409 (D. Ariz. 1990) (ARPA and its regulations “recognize that
ownership of these resources are in the Tribes on whose reservation these resources
are located . . . Archaeological resources on Indian lands belong to the Indians.”);
United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116-17 (1938) (resources
are constituent part of land belonging to the tribe); Black Hills Inst. of Geological
Research, Inc. v. South Dakota Sch. of Mines and Tech., 12 F.3d 737, 742 (8th Cir.
The part of the BIA regulation that purports to allow the BIA to distribute6
cultural items from one tribe’s land to a different tribe, 25 C.F.R. § 262.8(a)(2)(iii),would not withstand scrutiny to the extent it contradicts the plain language ofNAGPRA, ARPA, the Uniform Regulations, and the NAGPRA regulations. See 25U.S.C. § 3002 (a) (unless lineal descendant can be identified, ownership or controlof all cultural items, including remains, taken from tribal lands, is in the triballandowner); 43 C.F.R. § 10.6(a) (same); 16 U.S.C. § 470dd (disposition underregulation of archaeological resources from Indian lands “shall” require Indianlandowner consent); 43 C.F.R. § 7.13(b) (archaeological resources from tribal landare “property” of tribal landowner); 16 U.S.C. 470ii (agency-level ARPA regulationsmust be consistent with Uniform Regulations); Rodriguez v. Smith, 541 F.3d 1180,1189 (9th Cir. 2008) (regulations conflicting with clear language of statute invalid).
27
ownership itself, on Indian lands.” 58 Fed. Reg. at 65,248, Add. 37.
The District Court also cited to 43 C.F.R. § 7.13(e). Order at 10 n.11, NNRE
13. By its own terms, that regulation applies only to resources removed from public
lands, not Indian lands. 43 C.F.R. § 7.13(e). The District Court’s reliance on these
inapplicable regulations as support for concluding that the NAGPRA cultural
affiliation process is applicable to the Nation’s resources in the custody of NPS,
Order at 10 n.11, NNRE 13, is legal error. See Doe ex rel. Doe v. Kamehameha6
3. Lacking Both a Legal Interest in the Nation’s ArchaeologicalResources and the Nation's Consent, NPS’s Attempt to Apply theNAGPRA Disposition Process Violates both NAGPRA andARPA.
The NAGPRA regulations at 43 C.F.R Part 10 were promulgated under both
NAGPRA and ARPA, and specifically rely on ARPA, 16 U.S.C. § 470dd(2). See 43
C.F.R. part 10 (2011) (“Authority”). As discussed above, ARPA provides that any
“ultimate disposition” of archaeological resources 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(2). By pursuing the NAGPRA cultural
affiliation process without the Nation’s consent for archaeological resources taken
from the Nation’s lands, NPS is violating the plain and controlling language of
ARPA, its own NAGPRA regulations promulgated in part under the ARPA statute,
and NAGPRA itself. See 25 U.S.C. § 3009 (“Nothing in this chapter shall be
construed to . . . limit any procedural or substantive right which may otherwise be
secured to . . . Indian tribes”); 43 C.F.R. § 10.15(d) (2011) (same, for regulations).
NPS’s efforts to distribute the Nation’s archaeological resources to some other
Indian tribe pursuant to NAGPRA is unlawful because, among other things, NPS has
no legal interest in the resources. The sections of NAGPRA that provide for
compiling an inventory of remains, creating a summary of cultural objects, and
making a determination of cultural affiliation of remains or objects apply if and only
See also 25 U.S.C. § 3001(13) (definition of “right of possession”).7
33
if NPS has “possession” or “control” of the resources as those terms are defined
under NAGPRA’s implementing regulations. See 25 U.S.C. §§ 3003(a), 3004(a),
3005(a)(1)-(2). NPS does not have such possession or control.
The terms “possession” and “control” are defined under NAGPRA’s
implementing regulations as follows:
The term “possession” means having physical custody of humanremains, funerary objects, sacred objects, or objects of culturalpatrimony with a sufficient legal interest to lawfully treat the objects aspart of [a museum’s or Federal agency’s] collection for purposes ofthese regulations. Generally, a museum or Federal agency would not beconsidered to have possession of human remains, funerary objects,sacred objects, or objects of cultural patrimony on loan from anotherindividual, museum, or Federal agency.
[T]he term “control” means having a legal interest in human remains,funerary objects, sacred objects, or other objects of cultural patrimonysufficient to lawfully permit the museum or Federal agency to treat theobjects as part of its collection for purposes of these regulations whetheror not the human remains, funerary objects, sacred objects or objectsof cultural patrimony are in the physical custody of the museum orFederal agency. Generally, a museum or Federal agency that hasloaned human remains, funerary objects, sacred objects or objects ofcultural patrimony to another individual, museum, or Federal agency isconsidered to retain control of those human remains, funerary objects,sacred objects, or objects of cultural patrimony for purposes of theseregulations.
43 C.F.R. § 10.2(a)(3)(ii) (2011) (emphases added). Thus, to have either
Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 1996), cited in9
Order at 6, NNRE 9, is inapposite because there the plaintiff “claimed a violation ofNAGPRA’s repatriation provision, § 3005(a),” id. at 938, while here the Nationclaims that § 3005(a) does not apply to this case at all.
35
Compl. ¶ 47, NNRE 11; NNRE 19 ¶ 11. Because NPS’s physical custody of the8
remains and objects is not even based on a loan, NPS cannot have “possession” or
“control” of them under NAGPRA. See id. (explaining that “Physical Custody” does
not necessarily connote a “legal interest,” referring to definition of “Control and
Possession”). Here, NPS has only physical custody of the remains and objects
without a sufficient legal interest to lawfully treat them as part of its collection or to
consider them in its possession or control.
The District Court erred by failing to consider the definitions of “possession”
and “control” in the regulations as further explained in NPS’s guidance documents,
by holding that NPS has lawful possession or control of the archaeological resources,
and by holding that NAGPRA therefore permits NPS to keep or dispose of them to
others. Order at 7-8, NNRE 10-11. Because NPS lacks possession or control of the
resources taken from Canyon de Chelly, NAGPRA does not apply to this case. 9
Indeed, both ARPA and NAGPRA confirm the Nation’s exclusive legal
interest in the archaeological resources. See 16 U.S.C. § 470dd (under ARPA,
Although the Complaint does not allege the archaeological resources are “at10
least 100 years of age,” Order at 9 n.10, NNRE 12 (quoting 16 U.S.C. § 470bb(1)),NPS knows that they are at least 100 years old. Indeed, negotiations on theMonument Act were begun 88 years ago, and the ruins were considered ancient then.See H.R. Rep. No. 71-2397 (1931) (“The cultural progress recorded on these ruinscovers a longer period than found in any ruins yet located in that section of theUnited States.”); Monument History at 9, Add. 72 (referring to “prehistoric peoples”interred at Canyon de Chelly). The District Court did not dismiss on this basis, andany formal defect in the Complaint is easily remedied through amendment underRule 15. See, e.g., Lacey v. Maricopa County, 693 F.3d 896, 939 (9th Cir. 2012).
41
“failure to act”).
In rejecting the Nation’s claim under ARPA, the District Court erroneously
held that 16 U.S.C. § 470dd does not create a duty that NPS return the Nation’s
property. Order at 9, NNRE 12. In so holding, the District Court ignored the plain10
language of ARPA and of the only relevant regulation promulgated on this issue
since ARPA became effective in 1979. As the District Court acknowledged, “[t]he
statute provides in relevant part that the Secretary of the Interior may promulgate
regulations providing for the ultimate disposition of archaeological resources
removed from public lands or Indian lands, and that any ultimate disposition pursuant
to such regulations 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.’” Order at 9, NNRE 12 (quoting 16 U.S.C. § 470dd).
The District Court also acknowledged that ARPA regulations state that
“[a]rchaeological resources excavated or removed from Indian lands remain the
unlawfully withholding action. See Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir.
2001) (“the lack of a timetable does not give government officials carte blanche to
ignore their legal obligations”); Sierra Club v. Glickman, 156 F.3d 606, 618 (5th Cir.
1998) (rejecting Government’s position that “agency inaction can constitute ‘final
agency action’ only when there is a specific deadline for that action”). NPS has
refused to return the Nation’s property, and this refusal satisfies APA requirements
for agency action unlawfully withheld.
IV. THE DISTRICT COURT IMPROPERLY DISMISSED OR IGNOREDTHE NATION’S CONSTITUTIONAL AND TRUST CLAIMS FORWHICH SOVEREIGN IMMUNITY HAS BEEN WAIVED.
A. Because NPS Admits That It Has Property Taken From Canyon deChelly In Its Physical Custody, Refuses to Return It to the Nation,and Insists on Applying NAGPRA to Dispose of It, the Nation Pleda Cognizable Constitutional Claim.
1. The Nation Has a Protected Property Interest in theArchaeological Resources.
The Nation’s interest in the archaeological resources is a property interest
protected by the Fifth Amendment. In United States v. General Motors Corp., 323
U.S. 373 (1945), the Supreme Court explained the meaning of the term “property”
in this context:
The critical terms are ‘property,’ ‘taken’ and ‘just compensation.’ It isconceivable that the first was used in its vulgar and untechnical senseof the physical thing with respect to which the citizen exercises rightsrecognized by law. On the other hand, it may have been employed in a
The Nation’s claim is not based on the common law of Texas (or any other11
state), as the Government apparently assumed. See Mo. to Dism., Dkt. 13 at 15.
45
more accurate sense to denote the group of rights inhering in thecitizen’s relation to the physical thing, as the right to possess, use anddispose of it. In point of fact, the construction given the phrase hasbeen the latter.
Id. at 377-78 (footnote omitted). Property interests are not created by the
Constitution; rather, they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source. Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1001 (1984). “That independent source may be . . .
federal law which defines a person’s relationship to a particular thing.” Education
Assistance Corp. v. Cavazos, 902 F.2d 617, 627 (8th Cir.), cert. denied, 498 U.S. 896
(1990).
In this case, federal law – the 1868 Treaty, the Monument Act, ARPA, and
regulations implementing both ARPA and NAGPRA – is the independent source of
the Nation’s property interest. The 1868 Treaty and 25 U.S.C. § 640d-9(a)11
recognize the Nation’s exclusive right, title and interest in Canyon de Chelly and
create an express trust covering that land. The Monument Act, ARPA, and
NAGPRA all confirm the Nation’s exclusive property interest in the archaeological
resources of Canyon de Chelly. See supra at 25-27, 28 (citing, inter alia, Shoshone,
Black Hills, and Attakai). At the time NAGPRA was adopted, the Department of
properly premise its taking of the Nation’s resources on NAGPRA. See 43 C.F.R.
§ 10.2(f)(2)(iv) (2011) (“Actions authorized or required under these regulations will
not apply to Tribal lands to the extent that any action would result in a taking of
property without compensation within the meaning of the Fifth Amendment of the
United States Constitution.”).
3. 5 U.S.C. § 702 Waives the Government’s Sovereign Immunity forthe Nation’s Non-APA Claims, Including its ConstitutionalClaim, Trust Claim, and Claims Under Other Federal Statutes.
The District Court had subject matter jurisdiction over the Nation’s
constitutional claim pursuant to 28 U.S.C. § 1331. In this claim, the Nation sought
However, in apparently disposing of (in a footnote) the Nation’s constitutional
claim for lack of final agency action, the District Court cited Gallo Cattle Co. v.
United States Dep’t of Agric., 159 F.3d 1194, 1198 (9th Cir. 1998). Order at 5 n.7,
NNRE 8. Gallo Cattle can indeed be read to rule that “final agency action” as
defined in 5 U.S.C. § 704 limits the waiver of immunity granted by § 702.
Nonetheless, the District Court’s reliance on Gallo Cattle was legal error.
First, even if Presbyterian and Gallo Cattle disagree on this point, see Gros
Ventre Tribe v. United States, 469 F.3d 801, 809 (9th Cir. 2006) (recognizing
disagreement), cert. denied, 552 U.S. 824 (2007), the proper course of action for the
District Court was to follow the first precedent, Presbyterian. See, e.g., Hart v.
Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). Second, the two cases can be
reconciled without disturbing Presbyterian’s conclusion that § 702 waives federal
sovereign immunity for constitution and trust claims and claims under other federal
statutes, regardless of any final agency action.
The more principled way to reconcile the cases is to acknowledge thatthe claims in Gallo Cattle were brought under the APA, and werenecessarily limited by § 704’s requirement of finality. Thus, theholding of Gallo Cattle is that for claims brought under the APA, thesovereign immunity waiver is no broader than the scope of allowableclaims – challenges to final agency action. Where the allegation is thatthe agency action violates another law – be it statutory, constitutional,or common law – the waiver of sovereign immunity is not so limited,but rather is the broad unqualified waiver described in PresbyterianChurch and suggested in the plain language of the statute.
case for a decision on the merits after full discovery.
CONCLUSION
The judgment of the District Court should be reversed and the case remanded
for an adjudication of the Nation’s claims.
Respectfully submitted,
s/ William Gregory Kelly William Gregory KellyPaul E. FryeFrye Law Firm, P.C.10400 Academy Rd. NE, Suite 310Albuquerque, New Mexico
STATEMENT OF RELATED CASES
Appellant Navajo Nation is unaware of any related cases within the meaningof Ninth Circuit Rule 28-2.6 that are pending in this Court.
s/ William Gregory Kelly
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth inFed. R. App. P. 32(a)(7)(B). This brief contains 13,948 words, excluding the partsof the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The brief was preparedusing Corel Word Perfect X3 word processing system, in 14.1-font proportionately-spaced Times New Roman type for both text and footnotes. See Fed. R. App. P.32(a)(5) and 32(a)(6).
I hereby certify that I electronically filed the foregoing with the Clerk of theCourt for the United States Court of Appeals for the Ninth Circuit by using theappellate CM/ECF system on August 20, 2013. I certify that all participants in thecase are registered CM/ECF users and that service will be accomplished by theappellate CM/ECF system.