united states court of appeals for the … · united states court of appeals ......

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

Attorneys for Navajo Nation____________________

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, of 73

ii

TABLE OF CONTENTS

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

I. REVIEW IS DE NOVO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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


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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

1. The Nation Holds Treaty Title to the Monument Lands,Including the Archaeological Resources, Protected bythe Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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


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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

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58


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TABLE OF AUTHORITIES

I. CASES

Andriasian v. I.N.S., 180 F.3d 1033 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 27

Aramark Facility Serv. v. Service Employees Int’l U., 530 F.3d 817 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Argabright v. United States, 35 F.3d 472 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . 54

Artichoke Joe’s Calif. Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003), cert. denied, 543 U.S. 815 (2004) . . . . . . . . . . . . . . . . . . . . . . 16

Assiniboine and Sioux Tribes v. Board of Oil and Gas Conserv., 792 F.2d 782 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 57

Attakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990) . . . . . . . . . . . . . 25, 45

Babbitt v. Youpee, 519 U.S. 234 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Bankamerica Corp. v. United States, 462 U.S. 122 (1983) . . . . . . . . . . . . . . . . . 30

Bennett County v. United States, 394 F.2d 8 (8th Cir. 1968) .. . . . . . . . . . . . . . . 20

Black Hills Inst. of Geological Research, Inc. v. South Dakota Sch. of Mines and Tech., 12 F.3d 737 (8th Cir. 1993), cert. denied, 513 U.S. 810 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26, 28, 45, 46, 52, 53

Blagojevich v. Gates, 519 F.3d 370 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . 52

Bonnichsen v. United States, 969 F. Supp. 614 (D. Ore. 1997), op. after remand, 217 F.Supp. 2d 1116 (D. Ore. 2002), aff’d, 367 F.3d 864 (9th Cir. 2004) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39, 40

Chilkat Indian Village v. Johnson, 870 F.2d 1469 (9th Cir. 1989) . . . . . . . . . . . 57


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Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . 44, 49, 56

Commonwealth of Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007), cert. denied, 552 U.S. 1295 (2008) . . . . . . . . . . . . . . . . . . . . . 52

Cree v. Flores, 157 F.3d 762 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Delano Farms Co. v. California Table Grape Comm’n, 655 F.3d 1337 (Fed. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Doe ex rel. Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 625 F.3d 1182 (9th Cir. 2010), cert. denied, 131 S.Ct. 2448 (2011) . . . . . . . . 27

Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Education Assistance Corp. v. Cavazos, 902 F.2d 617 (8th Cir.), cert. denied, 498 U.S. 896 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Gallo Cattle Co. v. United States Dep’t of Agric., 159 F.3d 1194 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51

Gray v. First Winthrop Corp., 989 F.2d 1564 (9th Cir. 1993) .. . . . . . . . . . . . . . 48

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006), cert. denied, 552 U.S. 824 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Hale v. Norton, 476 F.3d 694 (9th Cir.), cert. denied, 552 U.S. 1076 (2007) .. . 38

Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010) . . . . . . . . . . . 52

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . 50

Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hodel v. Irving, 481 U.S. 704 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54


vii

HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000) .. . . . . . . . . . . . . . . . . . . . . . . 17

Hui v. Castaneda, 559 U.S. 799 (2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 57

Jicarilla Apache Tribe v. Supron Energy Corp., 728 F.2d 1555 (10th Cir. 1984), conc. and diss. op. adopted as maj. op. as modified, 782 F.2d 855 (10th Cir.), supplemented, 793 F.2d 1171 (10th Cir.), cert. denied, 479 U.S. 970 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kickapoo Traditional Tribe of Texas v. Chacon, 46 F.Supp. 2d 644 (W.D. Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . 41 Mashiri v. Department of Educ., No. 10-56022, ___ F.3d ___, 2013 WL 2350372 (9th Cir. May 30, 2013) . . . . . . . . . . . . . . . . . . . . . . . . 52-53

McBride Cotton and Cattle Corp v. Veneman, 290 F.3d 973 (9th Cir. 2002) . . . 51

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) .. . . . . . . . . . . . . . . . . . 16

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 16

Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397 (D. Hawai’i 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40

National Parks Conserv. Ass’n v. Norton, 324 F.3d 1229 (11th Cir. 2003) . . . . 52

National Treas. Employees U. v. FLRA, 112 F.3d 402 (9th Cir. 1997) . . . . . . . . 49

Native Village of Kivalina v. Exxon Mobil Corp., 696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S.Ct. 2390 (2013) . . . . . . . . . . . . . . . . . . . 16

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) .. . . . . . . 40, 43


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Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985) . . . . . . . . . . . 17, 57

Oregon Natural Desert Ass’n v. United States Forest Serv., 465 F.3d 977 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Peralta v. Hispanic Business, Inc., 419 F.3d 1064 (9th Cir. 2005) . . . . . . . . 16, 56

Pit River Home and Agric. Coop. Ass’n v. United States, 30 F.3d 1088 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 52, 54, 57

Pit River Tribe v. United States Forest Serv., 469 F.3d 768 (9th Cir. 2006) . . . . 56

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50, 53, 54

Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 1996) . . . . . . . . . . . 35

Reece v. United States, 455 F.2d 240 (9th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . 49

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . 27

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) . . . . . . . . . . . . . . . . . . . . . . 45

Rust v. Sullivan, 500 U.S. 173 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Sackett v. E.P.A., 132 S.Ct. 1367 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Sauer v. United States Dep’t of Educ., 668 F.3d 644 (9th Cir. 2012) . . . . . . . . . 43

Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132 (5th Cir. 1980), rev’d, 456 U.S. 728 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998) .. . . . . . . . . . . . . . . . . . . 44


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Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959) . . . . . . . . . . . . 54

Staacke v. United States Secretary of Labor, 841 F.2d 278 (9th Cir. 1988) . . . . 54

Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) . . . . . . . . . . . . . 28, 46

Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir. 2002) . . . . . . . . . . . . . 18

Treasurer of New Jersey v. United States Dep’t of Treas., 684 F.3d 382 (3d Cir. 2012), cert. denied, 133 S.Ct. 2735 (2013) . . . . . . . . . . . . . . . . . . . . 52

Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 52

Tulee v. Washington, 315 U.S. 681 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Creek Nation, 295 U.S. 103 (1935) . . . . . . . . . . . . . . . . . . . . . . 46

United States v. Dion, 476 U.S. 734 (1986) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. General Motors Corp., 323 U.S. 373 (1945) . . . . . . . . . . . . . . . 44

United States v. Mitchell, 463 U.S. 206 (1983) . . . . . . . . . . . . . . . . . . . . 49, 56, 57

United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938) . . . 25, 28, 45, 46

United States v. State of Washington, 235 F.3d 438 (9th Cir. 2000) . . . . . . . . . . 16

United States v. Washington, 641 F.2d 1368 (9th Cir. 1981), cert. denied, 454 U.S. 1143 (1982) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Wheeler, 435 U.S. 313 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) .. . . . . 56, 57

United States v. Winans, 198 U.S. 371 (1905) .. . . . . . . . . . . . . . . . . . . . . . . 28, 29

Valentini v. Shinseki, 860 F.Supp. 2d 1079 (C.D. Cal. 2012) . . . . . . . . . . . . . . . 51


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Varity Corp. v. Howe, 516 U.S. 489 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Watt v. Alaska, 451 U.S. 259 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Williams v. Taylor, 529 U.S. 420 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

II. CONSTITUTION, TREATIES, AND STATUTES

U.S. Constitution, amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3-4, 48

Treaty Between the United States of America and the Navajo Tribe of Indians, 9 Stat. 974 (Sept. 9, 1849) . . . . . . . . . . . . . . . . . . . . . . . 1,7, 8, 9, 17, 55

Treaty with the Navajo Indians, 15 Stat. 667 (June 1, 1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 8, 9, 28, 29, 45, 55

5 U.S.C. § 551 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 48, 49, 50, 52 53, 54, 57

5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51, 53

5 U.S.C. § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

16 U.S.C. §§ 445-445b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

16 U.S.C. § 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

16 U.S.C. § 445a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 29, 31, 47

16 U.S.C. § 445b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 30, 31, 55, 57

16 U.S.C. § 470aa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16 U.S.C. § 470aa-mm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

16 U.S.C. § 470bb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 41


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16 U.S.C. § 470dd . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23, 25, 27, 32, 35, 41, 43

16 U.S.C. § 470ii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27

25 U.S.C. § 640d-9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 45, 55

25 U.S.C. § 3001 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 22

25 U.S.C. § 3001(13) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

25 U.S.C. § 3002(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25, 26, 27, 35

25 U.S.C. § 3002(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

25 U.S.C. § 3003(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

25 U.S.C. § 3004(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

25 U.S.C. § 3005(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 37

25 U.S.C. § 3009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

25 U.S.C. § 3013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 51

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 48, 57

28 U.S.C. § 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 49

Act of June 14, 1934, 48 Stat. 960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

III. RULES

Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


xii

Fed. R. App. P. 43(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 12(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Evid. 201(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

IV. REGULATIONS

25 C.F.R. § 262.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

25 C.F.R. § 262.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 42

43 C.F.R. § 7.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

43 C.F.R. § 7.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

43 C.F.R. § 7.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

43 C.F.R. § 7.3(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

43 C.F.R. § 7.3(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

43 C.F.R. § 7.13(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

43 C.F.R. § 7.13(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25, 27, 36, 42

43 C.F.R. § 7.13(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27, 42

43 C.F.R. part 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

43 C.F.R. § 10.2(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34


xiii

43 C.F.R. § 10.2(f)(2)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

43 C.F.R. § 10.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27, 36

43 C.F.R. § 10.14(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

43 C.F.R. § 10.15(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

V. FEDERAL REGISTER NOTICES

49 Fed. Reg. 1016 (Jan. 6, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

58 Fed. Reg. 65,246 (Dec. 13, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

60 Fed. Reg. 5256 (Jan. 26, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 42

VI. OTHER AUTHORITIES

H.R. Rep. No. 71-2397 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 41

H.R. Rep. No. 101-877 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

S. Rep. No. 71-1397 (1931) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

34 U.S. Op. Atty. Gen. 181 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

David Brugge, et al., Administrative History: Canyon de Chelly National Monument Arizona (National Park Service 1976) (Library of Congress Control No. 76600883). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 41

National Park Service: National NAGPRA Program Frequently Asked Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

National Park Service: National NAGPRA Program Glossary . . . . . . . . . . . . . . 35

Department of Defense: Trust Responsibility and Consultation Matrix . . . . . . . 25


xiv

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


JURISDICTIONAL STATEMENT

The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1361, and 1362

and 25 U.S.C. § 3013 over the claims of the Navajo Nation (“Nation”) to redress

violations by the United States of the Treaty between the United States and the

Navajo Tribe signed at Canyon de Chelly in 1849 and ratified in 1850, 9 Stat. 974

(the “1850 Treaty”); the Treaty between the United States and the Navajo Tribe

signed and ratified in 1868, 15 Stat. 667 (the “1868 Treaty”); the Fifth Amendment

to the United States Constitution; the Act of March 1, 1933, 47 Stat. 2448, 16 U.S.C.

§§ 445-445b (the Canyon de Chelly National Monument Act or “Monument Act”);

the Archaeological Resources Protection Act (“ARPA”), 16 U.S.C. §§ 470aa-mm;

the Native American Graves Protection and Repatriation Act (“NAGPRA”), 25

U.S.C. § 3001 et seq.; and the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 551 et seq.

This Court has appellate jurisdiction under 28 U.S.C. § 1291. The District

Court entered its Order and Judgment (“Order”) on February 12, 2013, disposing of

all claims. The Nation timely filed its notice of appeal on April 12, 2013 pursuant

to Fed. R. App. P. 4(a)(1)(B).

STATEMENT OF THE ISSUES

Canyon de Chelly is the geographical and spiritual heart of the Navajo

Reservation. The 1868 Treaty setting aside lands for a permanent Navajo homeland


2

specifically provided that “Canyon-de-Chelly . . . is to be all included in this

reservation” set aside for the exclusive use of the Navajo. However, the National

Park Service (“NPS”) has been secretly removing human remains, sacred objects, and

cultural patrimony (collectively, the “archaeological resources”) from Canyon de

Chelly for its “collection” without the Nation’s consent. The Nation urged below

that the archaeological resources must be returned to the Nation. However, the

District Court held that the Monument Act gave NPS a sufficient legal interest in

them such that NPS has “possession or control” of them under NAGPRA; that NPS

could therefore retain those resources and distribute them to others; and that the

Government had not waived its sovereign immunity because no final agency action

under the APA had occurred.

The issues presented in this appeal are:

1. Whether the Monument Act, which provides that “[n]othing herein shall be

construed as in any way impairing the right, title and interest of the Navajo Tribe”

in Canyon de Chelly and was passed only after repeated assurances to the Nation that

the Nation’s treaty rights would be fully protected, abrogated the Nation’s treaty

rights to Canyon de Chelly and allowed NPS to take, keep, and dispose of

archaeological resources from Canyon de Chelly without the Nation’s consent, such

abrogation being a necessary predicate for the Government’s defense that NPS has


Secretary Sally Jewell is substituted for former Secretary Salazar pursuant to1

Fed. R. App. P. 43(c)(2).

3

lawful possession or control of them under NAGPRA.

2. Whether NPS’s decision to apply the NAGPRA cultural affiliation process

to the archaeological resources and NPS’s refusal to return them to the Nation under

ARPA constitute final agency action under the APA.

3. Whether APA final agency action is required for adjudication of claims

alleging violations of the Constitution, the federal trust duty, and statutes other than

the APA.

All three issues were raised in the Complaint, Dkt. 1, the Government’s

Motion to Dismiss, Dkt. 13, the Nation’s response thereto, Dkt. 17, and its Notice of

Supplemental Authority, Dkt. 19, and the Government’s Reply, Dkt. 18. All were

ruled on in the Order. Dkt. 25. All are reviewed de novo.

STATEMENT OF THE CASE

The Nation sued the United States Department of the Interior, Kenneth Salazar

as Secretary of the Interior, NPS and its Director Jonathan B. Jarvis, and1

Superintendent of Canyon de Chelly National Monument Tom O. Clark (collectively,

the “Government”). The Nation alleged that the Government violated its trust duties

and the Nation’s rights under the 1850 and 1868 treaties, the Fifth Amendment to the


4

Constitution, the Monument Act, ARPA, NAGPRA, and the APA by taking,

keeping, and disposing of the archaeological resources from Canyon de Chelly

without Navajo consent. The Nation sought injunctive and declaratory relief to,

among other things, prohibit the Government from continuing to remove the

archaeological resources and to require NPS to return already removed resources to

their resting place within Canyon de Chelly.

The Government moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of

subject matter jurisdiction based on an asserted lack of final agency action, standing,

and a ripe controversy, and because the claim was assertedly time-barred. The

Government also argued under Fed. R. Civ. P. 12(b)(6) that the Nation failed to state

a cognizable claim and sought dismissal under Fed. R. Civ. P. 12(b)(7) for the

Nation’s failure and inability to join other Indian tribes that the Government asserted

were necessary parties under Fed. R. Civ. P. 19.

In response to the Government’s contention that the court lacked subject matter

jurisdiction, the Nation asserted that it has standing because it owns all

archaeological resources in its lands including the archaeological resources taken by

NPS from Canyon de Chelly, the Monument Act did not abrogate but rather confirms

the Nation’s treaty rights to those resources, such ownership is also confirmed by

ARPA and its implementing regulations, and NPS has no legal interest in those


5

resources required under NAGPRA in order for NPS to retain them and distribute

them to others. The Nation urged that its Complaint, filed on December 16, 2011,

was not time-barred because the claims accrued at the earliest when the Nation

received a decision of the Interior Department’s Solicitor’s Office on April 26, 2010

stating the Department’s position that NPS had possession and control of the

Nation’s archaeological resources under NAGPRA. The Nation asserted that any

“final agency action” requirement was satisfied (or, alternatively, that agency action

was unlawfully withheld) when NPS expressly refused to return the Nation’s

archaeological resources and that the Nation was not required to wait indefinitely for

a final NAGPRA decision in order to have a ripe claim, when NAGPRA does not

apply in the first place.

As to the Government’s contention that the Nation failed to state a viable

claim, the Nation pointed out that it had stated a claim under the 1868 Treaty and

Constitution by specific allegations of its property rights to the archaeological

resources under that treaty and an impairment of such rights by NPS. The Nation

also stated a cognizable claim for breach of trust predicated on violations of fiduciary

duties expressly set forth in Article 2 of the 1868 Treaty and in the Monument Act,

and urged that the trust relationship combined with the Government’s administration,

possession, and use of Canyon de Chelly under provisions of the Monument Act


6

specifying duties of care, preservation, maintenance, and restoration of these

archaeological resources imposed fiduciary duties to administer the property in the

Nation’s interest. The Nation also relied on ARPA’s implementing regulations.

Those regulations recognize that archaeological resources on tribal lands are the

property of the tribes, and ARPA itself requires the affected tribe’s consent to the

disposition of those resources taken from its lands, such that the Nation stated a claim

under ARPA for NPS’s unlawful retention and disposition of those resources without

the Nation’s consent. The Nation also urged that the Monument Act and NAGPRA

could not properly be construed to impair the Nation’s property interests in Canyon

de Chelly, because doing so would render those statutes unconstitutional and because

an alternative interpretation of those statutes consistent with their language and

legislative history that does not raise serious constitutional questions is available and

proper.

The Government’s contention that other tribes needed to be joined begged the

question of whether NAGPRA applies at all, because only NAGPRA might

conceivably call for a disposition process involving more than one tribe. The

Nation’s response emphasized that ARPA confirmed the Nation’s exclusive, treaty-

based property right to all of Canyon de Chelly such that no other tribe could have

any right to that property.


United States v. Wheeler, 435 U.S. 313, 324 n.20 (1978).2

7

The District Court granted the Government’s motion based on a lack of subject

matter jurisdiction. It ruled that NPS gained a sufficient legal interest in the Canyon

de Chelly resources under the Monument Act to treat them as part of NPS’s

collection under NAGPRA. Order at 7, NNRE 10. It also held that federal sovereign

immunity barred the Nation’s claims because there had been no final agency action

by NPS under NAGPRA, and that ARPA did not impose a “non-discretionary

repatriation duty” to return the Nation’s archaeological resources upon the Nation’s

demand. Order at 9, NNRE 12. The District Court dismissed without any discussion

the Nation’s claim for breach of trust and disposed of the constitutional claim in a

footnote. Order at 5, n.7, NNRE 8. The District Court did not address the

Government’s arguments predicated on Rules 12(b)(6) and 12(b)(7).

STATEMENT OF FACTS

The government-to-government relationship between the Nation and the

United States is founded on the 1850 and 1868 treaties. The 1850 Treaty placed the2

Nation under the exclusive jurisdiction and protection of the United States,

established perpetual peace and friendship, included the Nation’s acknowledgment

of the Government’s sole and exclusive right of regulating trade and intercourse with

the Navajos, provided for complementary law enforcement, and committed the


8

Government to establish the boundaries of a permanent homeland for the Navajo.

1850 Treaty, Art. I-IX. As part of the bargain, the United States promised to “so

legislate and act as to secure the permanent prosperity and happiness of the said

[Navajo] Indians.” Id. Art. XI.

After additional conflict culminating in the internment of Navajo Indians at

Fort Sumner, New Mexico, the Nation and the United States negotiated and signed

the 1868 Treaty. Canyon de Chelly played a prominent role in the negotiations. The

principal Navajo negotiator, Barboncito, stated that he “was born at the lower end of

Cañon de Chelly,” and that he “will take all the Navajos to Cañon de Chelly [and]

leave my own family there – taking the rest and scattering them between San Mateo

mountain and San Juan river. I said yesterday this was the heart of the Navajo

country.” Add. 56, 61. The Government’s negotiator, General William Tecumseh

Sherman, assured Barboncito and the other Navajo leaders that “[w]e have marked

off a reservation for you, including the Cañon de Chelly and part of the valley of the

San Juan.” Id. at 63. Barboncito replied: “We are very well pleased with what you

have said and well satisfied with that reservation. It is the very heart of our country

. . .” Id. Canyon de Chelly is still the heart of the Navajo homeland. NNRE 18, 33.

It has extraordinary cultural and historical significance to the Navajo people,

including Navajo cosmology featuring Spider Woman, who figures prominently in


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


http://www.nps.gov/cach/historyculture/upload/CACH_adhi.pdf

http://www.nps.gov/cach/historyculture/upload/CACH_adhi.pdf,

http://www.nps.gov/cach/historyculture/upload/CACH_adhi.pdf

10

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


11

Southwest,” and should be given National Monument status so that its “priceless

ruins” would be repaired, protected from further vandalism, and preserved “for all

time.” H. R. Rep. No. 71-2397 (1931) at 1, 2; S. Rep. No. 71-1395 (1931) at 2; Add.

19-20, 23. The Act is predicated on the consent of the Council. 16 U.S.C. § 445,

Add. 12, and that formal consent is itself predicated on the promise that the Act

would not impair Navajo rights to Canyon de Chelly. H. R. Rep. No. 71-2397 at 3,

Add. 21.

When President Hoover issued the proclamation establishing the Monument

on April 1, 1931, Hagerman immediately wrote NPS Associate Director Cammerer,

stating that he was “a little surprised that the President’s proclamation did not

specifically state that the status of the lands as far as ownership and control by the

Indians, was not changed by the establishment of the monument, but I presume that

that is thoroughly understood, as that was of course the basis upon which the matter

was accepted by the Indians.” Monument History, at 16, Add. 79. NPS Director

Albright promptly replied that “as far as ownership and control by the Indians are

concerned [it] was not changed by the establishment of the monument. It was

considered only necessary to have the proclamation refer to the resolution adopted

by the Navajo Tribal Council which clearly protects the Indians in the ownership of

their lands.” Id. Thus, the Monument “is the only monument that the Park Service


12

does not own, jurisdiction being based solely on Section 3 of the Congressional act

that charges the Service with administration of the ruins. . . .” Id. at 17, Add. 80.

The Navajo people believe that the natural world is a connected and

interdependent web of relationships, a great kinship that includes human beings,

human culture, and ceremony. Compl. ¶ 17, NNRE 35. In accordance with this

system and natural law, when human beings die they must be placed in the earth. Id.

It is profoundly disrespectful and harmful to the integrity of the world to exhume

human remains from their resting place. Id. In the Navajo world view, exhuming

human remains disrupts local and global weather patterns and causes illness to

people, family and intertribal disharmony, and damage to crops, natural ecosystems,

and the environment. Id.

The remains and objects at issue are among the most sacred of the Nation’s

property. See Monument History, at 7 (Hagerman noting that Canyon de Chelly is

“looked upon by the Indians more or less as sacred ground . . .”), Add. 70. The

Nation, through its Council, agreed that the Monument could be established on the

terms explained to it. The Council did not agree and would never have agreed that

NPS or any other party would be allowed to exhume and carry off human remains

and sacred patrimony from Canyon de Chelly. Compl. ¶¶ 18-19, NNRE 35-36;

NNRE 18-19; see Monument History, at 7-8, 17, Add. 70-71, 80. Such an agreement


13

would have directly violated core Navajo spiritual, cultural, and religious values and

beliefs; would have been inconsistent with the historical and cultural significance of

Canyon de Chelly to the Navajo; and would have violated the sacred trust that the

Navajo people gave to the Council as their leaders. NNRE 18-19, 35-36.

In the late 1980s, the Nation’s Historic Preservation Department (“HPD”) gave

permission to NPS to disinter approximately six individuals whose graves were being

eroded, on the condition that the remains immediately be reinterred. Compl. ¶ 21,

NNRE 36. But instead of complying with those conditions with which it had agreed,

NPS took these remains and added them to its off-reservation collection. Compl.

¶ 22, NNRE 36. In the 1990s, the Nation learned that NPS, prior to the enactment

of NAGPRA, had dug up and carted off untold numbers of cultural items and at least

303 sets of human remains from the Monument to an NPS facility, the Western

Archaeology Conservation Center in Tucson, Arizona, and that NPS was planning

to go through the disposition process under NAGPRA, passed in 1990. Compl. ¶¶ 23,

37, NNRE 36, 38. NPS told HPD that NPS intended to carry out an inventory and

cultural affiliation of the resources, and then to give them to whatever Indian tribe

it believed was culturally affiliated. Compl. ¶¶ 24-25, NNRE 36.

The Nation objected. HPD emphasized to NPS that the archaeological

resources were treaty property of the Nation and that NPS did not have legal


14

possession or control of them as required to apply the NAGPRA disposition process.

NNRE 19. The Nation’s objections appeared to have succeeded. Although NPS

began the NAGPRA process, it was never completed, and NPS eventually withdrew

the draft inventory in 2007. Id.

But in 2010 or 2011, after receiving the decision of the Solicitor’s Office that

NPS had possession and control of the Canyon de Chelly resources, NNRE 20, NPS

restarted the NAGPRA process. The Nation again objected. Its objections

culminated in a letter dated August 9, 2011 sent by the Navajo attorneys to

Superintendent Clark, demanding that NPS cease the NAGPRA process and

notifying him that the Nation would sue if necessary to protect its treaty rights.

Compl. ¶¶ 30-33, NNRE 37-38. Clark refused, see id. Compl. ¶ 34, NNRE 38;

NNRE 15-16, and the Nation promptly filed this suit.

SUMMARY OF THE ARGUMENT

The District Court held that the Monument Act, adopted for the benefit of the

Navajo to prevent people from removing the Tribe’s archaeological resources at

Canyon de Chelly, gave the NPS a legal interest in them sufficient for the

Government to remove and dispose of them to others under NAGPRA. That ruling

misconstrued the Monument Act, improperly abrogated the Nation’s treaty rights,

and ignored the relevant ARPA regulation that affirms the Indians’ rights to such


15

resources excavated or removed from Indian lands and that applies the NAGPRA

disposition process only to resources excavated or removed from non-Indian lands.

ARPA is the principal relevant statute. ARPA recognizes the Nation’s

ownership of archaeological resources in its lands, including these archaeological

resources removed from the Nation’s lands before 1990. Assuming arguendo that

final agency action is required, NPS’s decision that NAGPRA applies is itself final

agency action under the APA. So is NPS’s definitive rejection of the Nation’s

request under ARPA that NPS return those resources to the Nation.

The Nation properly stated a claim predicated on the Constitution over which

the District Court had subject matter jurisdiction, its footnote disposition of this

claim notwithstanding. The Nation also stated a viable claim for breach of the

Government’s trust duties, established by the 1850 and 1868 treaties, the Monument

Act, and ARPA; confirmed through an express trust established in 1974 pursuant to

25 U.S.C. § 640d-9(a); and further established by NPS’s occupation, use, and

administration of Canyon de Chelly. The District Court did not even devote a

footnote to this claim. Final agency action is not required for the Nation’s claims

alleging violations of the Constitution, the federal trust duty, and non-APA statutory

mandates. The Government waived its sovereign immunity for these claims in

5 U.S.C. § 702 regardless of whether APA final agency action has occurred.


16

ARGUMENT

I. REVIEW IS DE NOVO.

A dismissal for lack of subject matter jurisdiction is reviewed de novo, Peralta

v. Hispanic Business, Inc., 419 F.3d 1064, 1068 (9th Cir. 2005), and the factual

allegations of the Nation’s Complaint must be accepted as true, Native Village of

Kivalina v. Exxon Mobil Corp., 696 F.3d 849, 855 (9th Cir. 2012), cert. denied, 133

S. Ct. 2390 (2013).

II. THE TREATIES, STATUTES, REGULATIONS, AND AGREEMENTSMUST ALL BE CONSTRUED GENEROUSLY IN FAVOR OF THENAVAJO NATION.

Indian treaties and statutes intended to benefit tribes should be generously

construed to comport with the federal policy of encouraging tribal independence and

tribal notions of sovereignty. E.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130,

152 (1982); Artichoke Joe’s Calif. Grand Casino v. Norton, 353 F.3d 712, 729 (9th

Cir. 2003), cert. denied, 543 U.S. 815 (2004). Ambiguous provisions in federal

statutes and agreements are to be interpreted in favor of tribes, and doubtful

expressions of legislative intent must be resolved in the Indians’ favor. Montana v.

Blackfeet Tribe, 471 U.S. 759, 766 (1985); Artichoke Joe’s, 353 F.3d at 730; United

States v. State of Washington, 235 F.3d 438, 442 (9th Cir. 2000).

These canons of construction are rooted in the unique trust relationship


17

between the United States and the Indians. Oneida County v. Oneida Indian Nation,

470 U.S. 226, 247 (1985). In the Navajo case, Article XI of the 1850 Treaty

promised that the United States would “so legislate and act as to secure the

permanent prosperity and happiness of the said [Navajo] Indians.” Such language

provides a basis in positive law for these rules of construction. It also signals a

“willing assumption” by the federal Government of trust obligations. Jicarilla

Apache Tribe v. Supron Energy Corp., 728 F.2d 1555, 1563 n.1 (10th Cir. 1984)

(Seymour, J., concurring and dissenting), conc. and diss. op. adopted as maj. op. as

modified, 782 F.2d 855 (10th Cir.) (en banc), supplemented, 793 F.2d 1171 (10th

Cir.), cert. denied, 479 U.S. 970 (1986).

Because statutes and regulations are to be construed in the same manner, Hart

v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976), federal regulations are also construed

favorably to tribes and, if a regulation may be interpreted in more than one way, the

courts should choose the reading that is most consistent with the trust relationship,

HRI, Inc. v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000); see Parravano v. Babbitt,

70 F.3d 539, 544 (9th Cir. 1995) (applying such canons of construction to Executive

Order), cert. denied, 518 U.S. 1016 (1996).

The federal trust duty governs the conduct of all federal agencies that deal with

tribal property. Parravano, 70 F.3d at 546; HRI, 198 F.3d at 1245. Executive


18

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


19

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

enactment of NAGPRA in 1990:


21

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


22

that, for archeological resources discovered on tribal lands, ownership or control is

in the Indian land owner, except for remains and AFOs where there is a known lineal

descendant. Id. Moreover, such resources are given to the closest culturally

affiliated tribe only if the resources are removed from non-tribal lands. Id. Thus,

even if the remains and objects from Canyon de Chelly had been removed by NPS

after the enactment of NAGPRA in 1990, NAGPRA provides that ownership or

control of those resources would be in the Navajo Nation.

NAGPRA does not specifically address who has ownership or control of

archaeological resources that were removed from tribal lands before 1990, as is the

case here. See generally 25 U.S.C. §§ 3001 et seq. As discussed in the previous

section, ARPA and its Uniform Regulations do address ownership and control of

such resources removed from tribal lands and state the same rule that NAGPRA does:

resources from tribal lands are owned and controlled by the Indian landowner.

3. ARPA and NAGPRA Are in Harmony and This Court ShouldGive Effect to Both Statutes.

Apparently under the erroneous belief that NAGPRA changed the ARPA rule

regarding ownership and control of archaeological resources taken from tribal lands

prior to 1990, the Government urged below that NAGPRA repealed by implication

those provisions of ARPA. See Reply Br., Dkt. 18 at 7 (arguing that NAGPRA is

more specific than ARPA and passed later in time, so that NAGPRA, rather than


23

ARPA, governs). The Government’s position is incorrect and its attempt to so

nullify ARPA would be unavailing in any event.

“[R]epeals by implication are not favored and will not be presumed unless the

intention of the legislature to repeal is clear and manifest.” Hui v. Castaneda, 559

U.S. 799, 130 S. Ct. 1845, 1853 (2010). A court “must read the [two] statutes to give

effect to each if [the court] can do so while preserving their sense and purpose.” Watt

v. Alaska, 451 U.S. 259, 267 (1981); see Kickapoo Traditional Tribe of Texas v.

Chacon, 46 F. Supp. 2d 644, 651 (W.D. Tex. 1999) (ARPA and NAGPRA should

be construed in pari materia and in a manner to give effect to both). Judges “are not

at liberty to pick and choose among congressional enactments, and when two statutes

are capable of co-existence, it is the duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard each as effective.” Morton v.

Mancari, 417 U.S. 535, 551 (1974).

There is no evidence that Congress intended any provision of NAGPRA to

repeal or supplant ARPA, specifically 16 U.S.C. § 470dd. This Court should give

effect to both statutes by holding that the ownership and control provisions of

NAGPRA do not apply to archaeological resources removed from tribal lands prior

to its enactment, that those provisions in ARPA and its Uniform Regulations do, and

that both NAGPRA and ARPA recognize and preserve tribal ownership and control


Section 10(a) of ARPA, 16 U.S.C. § 470ii, requires that the Secretaries of the5

Interior, Agriculture, and Defense, and the Chairman of the Board of the Tennessee

24

of such resources taken from tribal land, in any event.

Notably, the ARPA Uniform Regulations were amended, after the enactment

of NAGPRA, in part to “provid[e] guidance to Federal land managers about the

disposition of Native American human remains and other ‘cultural items’ as defined

by NAGPRA.” 60 Fed. Reg. 5256 (Jan. 26, 1995), Add. 38. The amendments did

not affect subsection 7.13(b). See id. at § 7.13(b) (2011) (resources removed from

Indian lands remain the property of the Indian landowner); compare 49 Fed. Reg.

1016, 1032 (original regulation with same wording). They merely added subsection

7.13(e), which directs the federal land manager to use NAGPRA procedures for

disposing of archaeological resources “that have been excavated, removed, or

discovered on public lands,” 43 C.F.R. § 7.13(e) (emphasis added). There is no

authority in § 7.13 for the federal land manager to use NAGPRA for disposition of

archaeological resources taken from Indian lands, which remain the property of the

Indian landowner. See id. § 7.13(b). On the contrary, use of the NAGPRA

disposition process for resources from Indian lands was specifically rejected because

doing so would violate ARPA. See 60 Fed. Reg. at 5258 (in response to a comment

to add procedures for disposing of archaeological resources from Indian lands, the

drafters stated that “[a]rchaeological resources excavated or removed from Indian5


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.


26

1993) (fossil taken from soil of Indian trust land is considered restricted Indian

“land” for purposes of federal law), cert. denied, 513 U.S. 810 (1994).

The District Court cited to a regulation, 25 C.F.R. § 262.8(a), which “deal[s]

with such items removed from Indian lands under the control of the Bureau of Indian

Affairs [“BIA”]. . . .” Order at 10 n.11, NNRE 13. That regulation does not apply

to objects in the custody of NPS. By its own terms it applies only to resources in the

custody of the BIA. 25 C.F.R. § 262.1 (2012). Moreover, the BIA regulation

thought by the court below to “provid[e] for disposition pursuant to the dictates of

NAGPRA,” Order at 10 n.11, NNRE 13, is intended to implement the prospective

priority rule under NAGPRA for ownership and control, not the cultural affiliation

process. See 58 Fed. Reg. 65,246, 65,248 (Dec. 13, 1993) (amending the draft rule

at 25 C.F.R. § 262.8 to accommodate the NAGPRA “priority system”), Add. 37. The

Government admitted as much. Reply at 3, Dkt. 18. As discussed above, the

NAGPRA priority rule vests ownership or control of remains and cultural objects

from Navajo lands in the Nation, not in the Government or some other potentially

affiliated tribe. See 25 U.S.C. § 3002(a)(2)(A). As the Government acknowledged

in promulgating the NAGPRA regulations, “[t]he legal principles applied in this rule

to the ownership of archaeological resources are, and must remain, the same as those

governing the Secretary in other realty matters, such as mineral rights or land


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

Schools/Bernice Pauahi Bishop Estate, 625 F.3d 1182, 1187 (9th Cir. 2010) (“The

failure to consider the relevant federal rule . . . is in itself a legal error and abuse of

discretion.”), cert. denied, 131 S.Ct. 2448 (2011); Andriasian v. I.N.S., 180 F.3d

1033, 1036 (9th Cir. 1999) (agency’s disregard of applicable regulation is “clear

legal error”).


28

B. ARPA and NAGPRA Confirm the Nation’s Ownership of theResources and Defeat NPS’s Claim of a Legal Interest in Them.

1. The Nation Holds Treaty Title to the Monument Lands, Includingthe Archaeological Resources, Protected by the Constitution.

Since 1868, the Navajo Nation has held recognized title to Canyon de Chelly

and its archaeological resources. The 1868 Treaty defines the boundaries of the

original Navajo reservation and specifically provides that Canyon de Chelly “is to be

all included in this reservation, shall be, and the same is hereby, set apart for the use

and occupation of the Navajo Tribe of Indians . . . .” 1868 Treaty Art. II, Add. 5.

This language recognizes the title of the Navajo Nation to the lands and resources

located on or under those lands. Shoshone Tribe, 304 U.S. at 116-17. Tribes retain

all rights not expressly granted to the United States in treaties. United States v.

Winans, 198 U.S. 371, 381 (1905). Indian “land” includes tangible objects buried

in the soil of the land. Black Hills Inst., 12 F.3d at 742 (fossil). Recognized Indian

title is a property right protected by the Fifth Amendment. E.g. United States v.

Sioux Nation, 448 U.S. 371, 421-24 (1980); Tee-Hit-Ton Indians v. United States,

348 U.S. 272, 277-78 (1955).


29

2. The Monument Act Confirmed the Nation’s Treaty Rights andConferred No Legal Interest to NPS Sufficient to ApplyNAGPRA.

Canyon de Chelly was specifically bargained for under the negotiations leading

to the 1868 Treaty. Articles II and XIII of the 1868 Treaty provide expressly 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. Canyon de Chelly

has extraordinary religious, cultural and historical significance to the Navajo people.

See supra at 8-9, 12-13. The Nation’s treaty rights to the land and resources at

Canyon de Chelly must be generously construed in the way the Navajos would have

understood them. E.g., Tulee v. Washington, 315 U.S. 681, 684-85 (1942); Winans,

198 U.S at 830-81; Cree v. Flores, 157 F.3d 762, 767 (9th Cir. 1998).

In 1925, the Government initiated discussions with the Council about the

establishment of a national monument at Canyon de Chelly. See supra at 9. Federal

Commissioner Hagerman repeatedly assured the Council that the Nation’s title in and

rights to Canyon de Chelly would not be taken or impaired in any way and that the

ruins would be managed to prevent removal of the artifacts and remains in Canyon

de Chelly. See supra at 9-11. The Monument Act itself provides that the right, title,

and interest of the Nation in Canyon de Chelly would not be impaired. 16 U.S.C.

§ 445a. Upon passage of the Act, NPS’s Director immediately agreed that the


30

Monument Act did not affect the Nation’s “ownership and control” of Canyon de

Chelly. See supra at 11. This contemporary interpretation of the Monument Act by

the agency charged with its implementation is entitled to great deference. See

Bankamerica Corp. v. United States, 462 U.S. 122, 130 (1983). The Monument Act

imposed federal duties of “care, maintenance, preservation and restoration” of these

archaeological resources, not rights to take them without the Nation’s consent. 16

U.S.C. § 445b.

Courts must give the words of a statute their ordinary, contemporary, common

meaning, absent a contrary indication by Congress. Williams v. Taylor, 529 U.S. 420,

431 (2000). When in doubt, statutes are to be construed liberally in favor of the

Indians, with ambiguous provisions interpreted to their benefit. E.g., Blackfeet Tribe,

471 U.S. at 767-68. Here, there is no ambiguity. By the Monument Act’s plain

language, Congress did not alter or extinguish the Navajo Nation’s title to the

Monument and its resources, or give such title to NPS. That would also have been

directly contrary to the Act, its legislative history, and the repeated assurances made

to the Navajo Tribal Council by the Government’s agent.

Nevertheless, the District Court held that NPS has a sufficient legal interest in

the remains and objects in order to apply NAGPRA “because the [Monument Act]

specifically grants the NPS broad authority to administer the Monument ‘so far as it


31

applies to the care, maintenance, preservation and restoration of the prehistoric ruins,

or other features of scientific or historical interest within the area . . . .’” Order at 7

(quoting 16 U.S.C. § 445b), NNRE 10. The Court provided no analysis of the quoted

language and did not apply principles of statutory construction required for statutes

affecting Indian interests. The District Court also failed to consider the other

language in the statute specifically preserving the Nation’s treaty rights. See id.; 16

U.S.C. § 445a.

The Monument Act imposed duties on the Government and did not convey

property interests in Canyon de Chelly to NPS or to third parties. 16 U.S.C. § 445b.

It did not authorize NPS to go in and loot those resources, cf. supra at 9 (quoting

Commissioner Hagerman), or to refuse to return such resources to the Nation that it

removed without the Nation’s permission, see 16 U.S.C. § 445b. By agreeing to the

establishment of the Monument, the Council did not agree and would never have

agreed to a diminishment of its treaty interests, or that NPS or any other party would

be allowed to exhume and carry off human remains and the cultural patrimony of the

Nation and dispose of them to third parties. See supra at 12-13. The District Court

erred when it ruled that the Monument Act diminished the Nation’s treaty rights and

gave a legal interest to NPS sufficient for NPS to take the Nation’s property.


32

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.

43 C.F.R. § 10.2(a)(3)(i) (2011) (emphasis added). Similarly, 7

[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


34

“possession” or “control” of the remains and objects taken from the Nation’s treaty

lands under NAGPRA, NPS must have a “legal interest” in them. By NPS’s own

guidance, it has no such legal interest. See NPS, U.S. Department of the Interior,

N a t i o n a l N A G P R A F r e q u e n t l y A s k e d Q u e s t i o n s ,

http://www.nps.gov/nagpra/FAQ/INDEX.HTM (“What do ‘control’ and ‘possession’

mean? . . . For example, if a museum has physical custody of Native American

human remains or cultural items, but lacks legal interest (for example when a

museum is holding a collection on loan from another institution or a private

collector), then the museum does not have control of these remains or items for

NAGPRA purposes.”) (emphasis added).

So, even if the archaeological resources were on loan from the Nation to NPS,

NPS “would not be considered to have possession of” them, 43 C.F.R.

§ 10.2(a)(3)(i), and the Nation would be “considered to retain control of” these

resources, 43 C.F.R. § 10.2(a)(3)(ii). Therefore, NPS would not have “possession”

or “control” for purposes of NAGPRA, even if the Nation had loaned the remains

and objects to NPS. But here NPS’s physical custody of the remains and objects is

not even based on a loan because “NPS has never obtained the voluntary consent of

the Navajo Nation to treat the remains and objects . . . as part of its collection.”


http://www.nps.gov/nagpra/FAQ/INDEX.HTM

See also NPS, National NAGPRA Program Glossary,8

http://www.nps.gov.nagpra/TRAINING/GLOSSARY.HTM (defining “Loan”), Add.45.

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,


http://www.nps.gov.nagpra/TRAINING/GLOSSARY.HTM

36

disposition of archaeological resources from Indian lands “shall” require Indian

landowner consent); 43 C.F.R. § 7.13(b) (archaeological resources from tribal lands

are “property” of tribal landowner under ARPA regulations); 25 U.S.C. § 3002 (a)

(under NAGPRA, absent identification of a lineal descendant, ownership of all

cultural items taken from tribal lands, including remains, is in the tribal landowner);

43 C.F.R. § 10.6(a) (same under NAGPRA regulations).

C. NPS’s Decision to Apply the NAGPRA Cultural Affiliation Processto the Resources Is Final Agency Action Under the APA.

The District Court held that NPS’s action of applying NAGPRA to the

archaeological resources taken by NPS from Canyon de Chelly does not constitute

final agency action for APA judicial review purposes because the action “did not

mark the consummation of the NPS’ decision-making process” and is not “one by

which rights or obligations have been determined or one from which legal

consequences will flow.” Order at 7, NNRE 10. This holding is erroneous because

the decision of the Department of the Interior that NAGPRA is applicable and NPS’s

action of applying NAGPRA to the remains and objects constitute a final legal

determination and definitive statement of the agency’s position that other tribes have

the right, and the Nation has the obligation, to participate in a repatriation proceeding

to which the Nation objects as inapplicable and unlawful. See Oregon Natural

Desert Ass’n v. United States Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (“In


37

determining whether an agency’s action is final, we look to whether the action

amounts to a definitive statement of the agency’s position or has a direct and

immediate effect on the day-to-day operations of the subject party, or if immediate

compliance with the terms is expected.”) (citation omitted; emphasis added).

NPS’s action of applying NAGPRA to the remains and objects is one from

which legal consequences flow in two ways. First, the Nation must either spend the

time and money to participate in the repatriation proceeding or run the risk of adverse

repatriation determinations if it does not do so. Second, the Nation will be denied

the opportunity to provide proof of its ownership of the resources in the NAGPRA

disposition process under § 3005, because such disposition can be made by the

agency or the museum only on the basis of a cultural affiliation determination, see

25 U.S.C. § 3005(a), and the admissible evidence for making such a determination

does not include evidence of ownership of the resources, see 43 C.F.R. § 10.14(e)

(2011). The Nation therefore has the right to challenge NPS’s decision to apply

NAGPRA in this case and to require the Nation to go through the NAGPRA cultural

affiliation and repatriation process before the Nation is required to go through that

process. See Sackett v. E.P.A., 132 S. Ct. 1367, 1371-72 (2012) (decision by the

Environmental Protection Agency that it had jurisdiction over parties and property

under the Clean Water Act was final agency action reviewable by district court); see


38

id. at 1374 (“The Court holds that the Sacketts may immediately litigate their

jurisdictional challenge in federal court. I agree, for the Agency has ruled

definitively on that question.”) (Ginsburg, J., concurring); Hale v. Norton, 476 F.3d

694, 698-99 (9th Cir. 2007) (holding that a challenge to the authority of the NPS to

subject a permit request to an analysis under the National Environmental Policy Act

was reviewable under the collateral order doctrine; the “complaint does not challenge

the result of the permitting process which, as the district court found, had not

produced a final action at the time of the [ ] suit. Rather, it challenges the authority

of the NPS to subject the permit request to a NEPA analysis in the first place.”), cert.

denied, 552 U.S. 1076 (2007). Bonnichsen v. United States, 969 F.Supp. 614, 620-

22 (D. Ore. 1997) (agency decision that NAGPRA applied was reviewable before

completion of NAGPRA disposition process because it was dispositive of plaintiffs’

legal rights), op. after remand, 217 F. Supp.2d 1116 (D. Ore. 2002), aff’d, 367 F.3d

864 (9th Cir. 2004). As in Sackett, Hale, and Bonnichsen, the Nation has a right to

challenge the decision of NPS that NAGPRA applies before the NAGPRA cultural

affiliation process is begun and concluded.

In Bonnichsen, scientists who wished to study 9000 year-old human remains

that had been found on federal land sued to prevent repatriation of the remains to

Native American tribes by the Army Corps of Engineers (“Corps”), which had


39

determined that such repatriation was required under NAGPRA. 367 F.3d at 868-69.

Early in the case, before the completion of the repatriation proceeding, the District

Court held that the Corps had already made a number of “final” decisions including

“that the remains were subject to NAGPRA . . . .” Bonnichsen, 969 F. Supp. at

620-21. To support this holding, the District Court reasoned that “[f]rom the

standpoint of the plaintiffs, the agency’s decision was a final agency action that was

dispositive of the plaintiffs’ rights and interests in this matter.” Id. at 621-22

(footnote omitted). Just as the plaintiffs in Bonnichsen had their legal interests

adversely affected by the decision that NAGPRA applied, see id. at 623-24, so the

Nation here has had its legal interests adversely impacted by NPS’s decision that

NAGPRA applies, and NPS’s decision to apply NAGPRA is a final agency action.

Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922 (9th Cir. 1999),

cited in Order at 8, NNRE 11, is inapposite because there plaintiff was complaining

about “only steps leading to an agency decision,” id. at 925, while here the Nation

complains of NPS’s final decision to dispose of the Nation’s resources under

NAGPRA notwithstanding the Nation’s objection. Na Iwi O Na Kupuna O Mokapu

v. Dalton, 894 F.Supp. 1397 (D. Hawai’i 1995), cited in Order at 8, NNRE 11, is also

inapposite because there plaintiff’s complaint alleged that the federal defendant

violated NAGPRA § 3005 by failing to return expeditiously the subject remains to


40

plaintiff once cultural affiliation was known, Dalton 894 F.Supp. at 1405. Here, the

Nation objects to the application of the affiliation process of § 3005(a) to this case

at all.

As in Bonnichsen, the Navajo Nation claims that it is a victim of an unlawful

application of NAGPRA. See Bonnichsen, 367 F.3d at 874. In Bonnichsen, this

Court concluded that NAGPRA did not apply to Kennewick Man’s remains: “We

thus hold that Kennewick Man’s remains are not Native American human remains

within the meaning of NAGPRA and that NAGPRA does not apply to them. Studies

of the Kennewick Man’s remains by Plaintiffs-scientists may proceed pursuant to

ARPA.” Id. at 882 (footnote omitted). Here, similarly, this Court should hold that

NPS’s decision to unlawfully apply NAGPRA is final agency action for purposes of

judicial review.

D. Any Requirement for Final Agency Action Under the APA Is AlsoSatisfied by the Unlawful Withholding of Agency Action UnderARPA.

The APA provides a right of action to redress agency action unlawfully

withheld. 5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed only where a

plaintiff asserts that an agency failed to take a discrete agency action that it is

required to take.” Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S.

55, 64 (2004) (emphases in original); see 5 U.S.C. § 551(13) (agency action includes


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


42

property of the Indian or Indian tribe having rights of ownership over such resources

. . . .” Order at 9-10, NNRE 12-13 (quoting 43 C.F.R. § 7.13(b)). Because

NAGPRA does not apply to this case, this plain language in ARPA and ARPA’s

implementing regulations created a duty on the part of NPS to return the Nation’s

resources once the Nation demanded them.

The Government cannot escape this duty by claiming “implementing

regulations [under ARPA] are being developed . . . .” Order at 10, NNRE 13. The

NAGPRA regulations themselves refer to the ARPA disposition statute, see supra

at 32, and when the ARPA Uniform Regulations were amended in 1995 to harmonize

them with NAGPRA requirements, the Government did not think any further

regulations were necessary for disposition of archaeological resources taken from

tribal lands because “[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, and who, as stated in ARPA, determine the appropriate

treatment.” 60 Fed. Reg. at 5258 (emphasis added), Add. 38-39. Nor can the

Government escape its duty under ARPA by citing inapplicable regulations, see

Order at 10 n.11, NNRE 13 (citing 43 C.F.R. § 7.13(e), which applies to resources

taken from public lands, and 25 C.F.R. § 262.8(a), which applies only to BIA), or by

claiming, as it did in the District Court, that NAGPRA impliedly nullifies the


43

provisions of ARPA with regard to archaeological resources taken from tribal land.

See supra at 22-27.

ARPA and the Uniform Regulations provide that the tribal landowner will

determine the treatment and disposition of archaeological resources taken from its

lands prior to enactment of NAGPRA, and do not authorize a federal land manager

to pursue a process for distributing this property to others over the tribal landowner’s

objections. When the Nation demanded NPS to stop the unlawful NAGPRA process

and return the resources, NPS had a duty to comply with the requirements of ARPA.

Thus, SUWA, cited in Order at 9, NNRE 12, supports the Nation’s position because

this duty on the part of NPS concerns “a discrete agency action that it is required to

take,” id. at 64 (emphases in original), under ARPA and its implementing

regulations, see id. at 65 (discrete agency action required by regulations impose

duties that courts may enforce); see 16 U.S.C. § 470dd(2) (disposition of

archaeological resources “shall” be subject to consent of Indian landowner, following

use of the word “may” in prior clause); Sauer v. United States Dep’t of Educ., 668

F.3d 644, 651 (9th Cir. 2012) (when Congress uses “may” and “shall” in same

statute, “shall” imposes mandatory obligation).

The lack of an express deadline under ARPA for the return of the Nation’s

archaeological resources also does not defeat the Nation’s claim that NPS is


44

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


46

Interior recognized that human remains are property. H.R. Rep. No. 101-877 at 30

(1990), Add. 25. Recognized Indian title is a property right protected by the Fifth

Amendment. E.g., Sioux Nation, 448 U.S. at 421-24; Tee-Hit-Ton Indians, 348 U.S.

at 277-78; United States v. Creek Nation, 295 U.S. 103, 109-10 (1935); see Black

Hills Inst., 12 F.3d at 742 (Indian “land” includes tangible objects buried in the soil

of the land). As discussed supra at 29-31, the Monument Act did not abrogate, but

rather preserved, the Nation’s treaty rights and interests in Canyon de Chelly, which

remains the heart of the Navajo Nation.

2. The District Court Improperly Adopted, Rather than Avoided, aConstruction of the Monument Act that Raises SeriousConstitutional Issues.

NPS admits that it dug up and carted off the Nation’s archaeological resources,

including untold numbers of cultural artifacts and at least 303 sets of human remains

from Canyon de Chelly, Compl. ¶ 23, NNRE 36, without Navajo consent, NNRE 19.

NPS is storing this property in its collection in Tucson, Arizona, Compl. ¶ 25, NNRE

36, with the stated intent of determining if other tribes have some affiliation with this

property and conveying it to them. The District Court put its imprimatur on NPS’s

conduct, basing its holding on the view that the Monument Act permitted it. Such

a construction of the Monument Act raises serious takings issues. See Shoshone

Tribe of Indians, 304 U.S. at 115-16 (“although the United States always had legal


47

title to the land and power to control and manage the affairs of the Indians, it did not

have power to give to others or to appropriate to its own use any part of the land

without rendering, or assuming the obligation to pay, just compensation to the tribe,

for that would be not the exercise of guardianship or management, but confiscation”)

(emphasis added).

The District Court erred in adopting a construction of the Monument Act that

raises serious constitutional issues, rather than construing it reasonably and in

accordance with its plain language and legislative history to avoid such issues.

Clearly, the Monument Act did not expressly permit any federal agency to diminish

the Nation’s treaty rights or impair its property rights in Canyon de Chelly or provide

for just compensation for the taking of those property interests. That Act expressly

provides the opposite, 16 U.S.C. § 445a, and, in obtaining the Nation’s consent to the

establishment of the monument, the Government repeatedly assured the Nation that

its treaty and property rights would not be impaired. Upon the Act’s passage, NPS

itself immediately acknowledged that the Nation’s treaty and property rights were not

impaired. See supra at 11. The Nation did not consent to any such diminishment of

its fundamental rights. See supra at 12-13.

There is simply no language in the Monument Act and nothing in the

surrounding circumstances that would support the construction of the Monument Act


48

adopted by the District Court. But even if there were, it should have chosen a

construction of the Monument Act that avoids serious constitutional issues, one that

recognizes that the Monument Act imposes duties of preservation and maintenance

on the NPS without diminishing the Nation’s property rights to the land and

resources. See Rust v. Sullivan, 500 U.S. 173, 190-91 (1991) (Court’s “plain duty”

is to avoid an interpretation of a statute by which it would be unconstitutional and to

adopt an interpretation which will save it; corollary doctrine mandates that a “statute

must be construed, if fairly possible, so as to avoid not only the conclusion that it is

unconstitutional but also grave doubts upon that score”); accord Gray v. First

Winthrop Corp., 989 F.2d 1564, 1568 (9th Cir. 1993). And, certainly, NPS cannot

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


49

a declaration that, if the Monument Act or NAGPRA permit NPS to take the Nation’s

property at Canyon de Chelly, they are unconstitutional. Compl. ¶¶ 58-59, NNRE

41. Federal sovereign immunity for such a claim is waived by 5 U.S.C. § 702. See

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989).

Similarly, the Nation’s claim alleging breach of trust duties was properly brought

under § 1331, and the APA waives federal sovereign immunity for that claim, also.

See, e.g., United States v. Mitchell, 463 U.S. 206, 227 & n.32 (1983); Pit River Home

and Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1097-98 & n.5 (9th Cir.

1994); Assiniboine and Sioux Tribes v. Board of Oil and Gas Conserv., 792 F.2d

782, 793 (9th Cir. 1986) (APA waives sovereign immunity for claims brought by

tribes under 28 U.S.C. § 1362); Cobell, 240 F.3d at 1094. More generally, the APA

waives federal sovereign immunity for claims seeking corrective orders where federal

officials are acting in excess of delegated powers, acting contrary to a federal

statutory prohibition, or patently abusing their discretion. National Treas. Employees

U. v. FLRA, 112 F.3d 402, 406 (9th Cir. 1997); Reece v. United States, 455 F.2d 240,

242 (9th Cir. 1972). That is because 5 U.S.C. § 702 “is an unqualified waiver of

sovereign immunity in actions seeking nonmonetary relief against legal wrongs for

which governmental agencies are accountable.” Presbyterian, 870 F.2d at 525; Pit

River Home, 30 F.3d at 1098 n.5 (citing Mitchell, 463 U.S. at 227 & n.32).


50

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.


51

Valentini v. Shinseki, 860 F.Supp. 2d 1079, 1101 (C.D. Cal. 2012). Indeed, the more

precise reading of Gallo Cattle is that the district court is not limited by § 704 in

hearing constitutional challenges to agency decisions, or general statutory and treaty

based claims, except where Congress has explicitly mandated a procedure for

exhaustion of administrative remedies that “is more than a codified requirement of

administrative exhaustion and contains sweeping and direct language that goes

beyond a requirement that only exhausted claims be brought.” See McBride Cotton

and Cattle Corp v. Veneman, 290 F.3d 973, 978-981 (9th Cir. 2002) (explaining that

the exhaustion requirement in Gallo Cattle was jurisdictional because the applicable

statute gave the the district court jurisdiction only over those claims that “had

previously been presented to the Secretary by administrative petition”) (internal

quotations and citations omitted); see Gallo Cattle, 159 F.3d at 1198-99 (rejecting

the plaintiff’s claim under § 704 of the APA where the plaintiff had, in the

administrative proceeding, both “a fair opportunity to challenge [the constitutional

deprivation] . . . [and] a clear and certain remedy for a successful challenge” but

failed to exhaust). Here, unlike in Gallo Cattle, the Nation would have no

opportunity to bring its constitutional, statutory, or treaty-based claims in the

NAGPRA cultural affiliation process, because that process precludes an evidentiary

showing of ownership of archaeological resources. See also 25 U.S.C. § 3013


52

(conferring jurisdiction on the federal district courts to remedy violations of

NAGPRA).

Third, such reconciliation of the two cases accords with the great weight of

authority. See, e.g., Black Hills Inst., 12 F.3d at 740 (§ 702’s broad waiver of

immunity applies in suit challenging government’s seizure of fossil found in Indian

lands, even though suit was not brought as APA action challenging a final agency

action); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 57-58 (1st Cir.

2007), cert. denied, 552 U.S. 1295 (2008); Treasurer of New Jersey v. United States

Dep’t of Treas., 684 F.3d 382, 397 (3d Cir. 2012), cert. denied, 133 S.Ct. 2735

(2013); Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139-40 (5th Cir.

1980), rev’d on other grounds, 456 U.S. 728 (1982); Hamdi ex rel. Hamdi v.

Napolitano, 620 F.3d 615, 623 (6th Cir. 2010); Blagojevich v. Gates, 519 F.3d 370,

372 (7th Cir. 2008); Pit River Home, 30 F.3d at 1098 n.5; National Parks Conserv.

Ass’n v. Norton, 324 F.3d 1229,1240-41 (11th Cir. 2003); Trudeau v. FTC, 456 F.3d

178, 186-87 (D.C. Cir. 2006); Delano Farms Co. v. California Table Grape

Comm’n, 655 F.3d 1337, 1344 (Fed. Cir. 2011). Finally, no waiver of sovereign

immunity is required in cases seeking to force public officials to perform a statutorily

imposed duty or alleging that the official is acting in a manner forbidden by the

constitution or federal laws. Mashiri v. Department of Educ., No. 10-56022, ___


53

F.3d ___, 2013 WL 2350372 at *3 (9th Cir. May 30, 2013).

This case is analogous to Black Hills, where the court of appeals relied on

§ 702’s waiver of immunity for a non-APA claim involving a fossil discovered in

Indian trust land. In Black Hills, the plaintiff brought suit against the United States,

asserting plaintiff owned the fossil that the government had seized. Black Hills, 12

F.3d at 739-40. Relying on Presbyterian and a Third Circuit opinion, the Eighth

Circuit held that the district court had jurisdiction to hear the claim for return of the

fossil and to grant permanent possession to the plaintiff because 5 U.S.C. § 702

waived the government’s sovereign immunity for such non-APA claim. As in Black

Hills, the Nation seeks the return of items taken from Indian lands which it alleges

are being unlawfully held by the Government. As in Black Hills, this Court should

find that the District Court had the authority to hear the Nation’s claim that the

Nation owns the archaeological resources taken from Canyon de Chelly without its

consent, under the waiver of immunity provided by § 702.

Contrary to the District Court’s view, the Nation never conceded that its non-

APA claims could only proceed pursuant to 5 U.S.C. § 704. See Order at 5 n.7,

NNRE 8. Indeed, in its Motion to Dismiss, the Government did not argue that final

agency action was lacking when it sought to dismiss the Nation’s constitutional and

trust claims. See Mo. to Dism. 7-9, Dkt. 13. Rather, the Government conceded that


54

the final agency action requirement of the APA “does not further limit Section 702’s

waiver in the context of constitutional claims.” Id. at 6-7 n.2. The Nation agreed

with the Government that there was jurisdiction for the Nation’s constitutional claim,

and cited Babbitt v. Youpee, 519 U.S. 234, 243-44 (1997), and Hodel v. Irving, 481

U.S. 704, 718 (1987), for the proposition that the court had the authority to provide

declaratory and injunctive relief for the Nation’s constitutional claim. NN Resp. to

Mot. to Dism. 15, Dkt. 17. The Nation alleged facts supporting federal question

jurisdiction; pled non-APA constitutional, trust, and federal statutory claims; and

alleged a waiver of sovereign immunity generally under § 702. Those allegations are

sufficient to support federal question jurisdiction. See Pit River Home, 30 F.3d at

1097-98 & n.5; Skokomish Indian Tribe v. France, 269 F.2d 555, 558 (9th Cir.

1959).

Additionally, even where a statute absolutely bars judicial review (not the case

here) “there are two situations where review is nonetheless available: First, courts

maintain jurisdiction to consider constitutional claims.” Staacke v. United States

Secretary of Labor, 841 F.2d 278, 281 (9th Cir. 1988); accord Argabright v. United

States, 35 F.3d 472, 476 (9th Cir. 1994). “[S]econd, jurisdiction exists where

defendant is charged with violating a clear statutory mandate or prohibition.” Id.

Thus, under Presbyterian, Pit River Home, and Staacke, the District Court’s


55

holding that it had no subject matter jurisdiction to adjudicate the Nation’s

constitutional, trust, and non-APA statutory claims for lack of APA final agency

action is reversible error.

B. The APA Also Waives Federal Sovereign Immunity for theNation’s Trust Claim, and the District Court ErroneouslyDismissed this Claim.

The District Court recognized that the Nation had pled a statutory and treaty-

based trust claim, Order at 2 n.3, NNRE 5, but dismissed the entire Complaint for

lack of jurisdiction without any consideration of its jurisdiction over this particular

claim. The implicit dismissal of the trust claim should be reversed.

As shown above, Article XI of the 1850 Treaty memorializes the

Government’s willing assumption of trust duties. The Government originally fixed

the boundaries of Navajo territory in the 1868 Treaty, and Canyon de Chelly played

prominently in the negotiations and in the Treaty itself. See supra at 8-9. The

Monument Act imposes duties of administration, preservation, maintenance, and care

of Canyon de Chelly on the Government, and NPS actively occupies, uses, and

administers Canyon de Chelly pursuant to that Act. 16 U.S.C. § 445b. All of

Canyon de Chelly is within the Navajo Reservation boundaries established in 1934,

and Congress placed that land in an express trust in 1974. See 25 U.S.C. § 640d-9(a)

(providing that all lands within the boundaries of the Navajo Reservation in Arizona,


56

as described in the Act of June 14, 1934, 48 Stat. 960, “shall be held in trust by the

United States exclusively for the Navajo Tribe”). The Nation alleged that NPS is

violating its trust duties to the Nation under federal common law and its duties of

care, maintenance, preservation and restoration of the archaeological resources under

the Monument Act. See Compl. ¶¶ 14-15, 52-53, NNRE 34, 40.

These allegations state viable claims for a breach of trust duties. The

Government breaches its “minimum fiduciary duty” when it violates statutes, even

statutes of general applicability, to the detriment of Indian tribes. E.g., Pit River

Tribe v. United States Forest Serv., 469 F.3d 768, 788 (9th Cir. 2006). But “[i]f the

fiduciary duty applied to nothing more than activities already controlled by other

specific legal duties, it would serve no purpose.” Varity Corp. v. Howe, 516 U.S.

489, 504 (1996); Peralta, 419 F.3d at 1070-72 & n.7; Cobell, 240 F.3d at 1098-99.

Thus, when the Government supervises or administers a tribal resource, full fiduciary

duties apply. Mitchell, 463 U.S. at 225-26. In addition, when Congress has declared

that certain tribal property is held in an express trust for a tribe and when a

Government agency has used and occupied that property, the Government is properly

held to a fiduciary’s duty to care for and maintain that property for the benefit of the

tribe, even if the applicable statute does not expressly impose such duties. United

States v. White Mountain Apache Tribe, 537 U.S. 465, 475-76 (2003).


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NPS exercises supervision of the Nation’s archaeological resources at Canyon

de Chelly, at least as much as the Government supervised the timber resources in

Mitchell. Congress placed those resources in an express trust in 1974 and NPS has

occupied, used, and administered them under the Monument Act, which (in contrast

to the applicable statute in White Mountain) does explicitly impose duties of “care,

maintenance, preservation and restoration” of those resources. 16 U.S.C. § 445b.

Moreover, NPS’s taking of those resources violates both the Monument Act and

ARPA, and, therefore, violates the Government’s “minimum fiduciary duty” owed

to the Nation. NPS’s conduct to date has consisted of acts of confiscation, not of

management or trusteeship.

The Nation stated a claim for breach of trust under federal common law

cognizable under 28 U.S.C. § 1331. See, e.g., Oneida Indian Nation, 470 U.S. at

235-36 (upholding federal question jurisdiction over tribal claim predicated on

federal common law); Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1473-75

(9th Cir. 1989); see generally Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972).

The Government waived sovereign immunity for such a claim brought by a tribe in

5 U.S.C. § 702. Mitchell, 463 U.S. at 227 & n. 32; Pit River Home, 30 F.3d at 1098

n.5; Assiniboine 792 F.2d at 793. This Court should reverse the District Court’s

implicit dismissal of that claim for lack of subject matter jurisdiction and remand the


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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).



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CERTIFICATE OF SERVICE

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.



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