Environment | Law

Navajo Nation wins ruling for remains removed from reservation

Thursday, April 7, 2016

A view of Canyon de Chelly National Monument in Arizona. Photo by Greg Peterson via Wikimedia Commons

The Navajo Nation can sue the federal government for taking more than 300 ancestral remains from the reservation, a divided 9th Circuit Court of Appeals ruled on Wednesday.

The remains were removed from the Canyon De Chelly National Monument, a federal facility located entirely within reservation boundaries. The tribe sought their return but the National Park Service declined, saying it had to follow the Native American Graves Protection and Repatriation Act and determine where the ancestors should go.

The tribe responded by filing a lawsuit in 2011. But a federal judge dismissed the case, saying it was premature because the NPS hadn't determined what to do with the remains.

On appeal, the 9th Circuit reversed. Choosing to conduct an inventory constitutes a "final agency action" so that means the NPS can be sued, the court ruled by 2 to 1 vote.

Indianz.Com SoundCloud: Oral arguments in Navajo Nation v. DOI

"By deciding to undertake NAGPRA’s inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, has the present right to 'possession and control' of the remains and objects,'" Judge Morgan Christen wrote for the majority.

The decision does not say whether the remains should in fact be returned to the tribe. On remand, a lower court judge must consider whether the tribe has a right to the ancestors under the Treaty of 1868 .

If the court agrees with the treaty rights premise, NAGPRA would not come into play at all, a situation that the dissenting 9th Circuit judge said would deprive other tribes of their ability to reclaim their ancestors within Canyon de Chelly. The Hopi Tribe, Zuni Pueblo and other Pueblo tribes maintain connections to the site.

"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," Judge Sandra Ikuta wrote in a dissent.

Turtle Talk has posted documents from the case, Navajo Nation v. Department of the Interior.

Get the Story:
Court: Navajo due a hearing on demand that feds return remains, relics (Cronkite News 4/6)
Court rules in favor of Navajo Nation in fight over remains (AP 4/6)
Appeals Court: Navajo Nation can seek return of remains (Capitol Media Services 4/6)
Court Rules Park Service Must Return Navajo Remains (Arizona Public Media 4/6)

9th Circuit Court of Appeals Decision:
Navajo Nation v. Department of the Interior (April 6, 2016)