Nation v. U.S. Department of the Interior

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAVAJO NATION, No. 13-15710

Plaintiff-Appellant,

D.C. No.

v. 3:11-cv-08205-

PGR

U.S. DEPARTMENT OF THE INTERIOR;

KENNETH LEE SALAZAR, in his

official capacity as Secretary of the OPINION

USDOI; NATIONAL PARK SERVICE;

JONATHAN B. JARVIS, in his official

capacity as Director of the National

Park Service; TOM O. CLARK, in his

official capacity as Park

Superintendent, Canyon de Chelly

National Monument,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted

June 10, 2015—San Francisco, California

Filed April 6, 2016

Before: Mary M. Schroeder, Sandra S. Ikuta,

and Morgan Christen, Circuit Judges.

2 NAVAJO NATION V. USDOI

Opinion by Judge Christen;

Dissent by Judge Ikuta

SUMMARY*

Native American Graves Protection and

Repatriation Act

The panel reversed the district court’s dismissal of the

Navajo Nation’s suit seeking an injunction ending the

National Park Service’s inventory, pursuant to the Native

American Graves Protection and Repatriation Act

(“NAGPRA”), of human remains and funerary objects

removed from the Canyon de Chelly National Monument on

the Navajo Reservation; and the immediate return of the

objects taken from the reservation.

The panel held that the district court had jurisdiction to

consider the Navajo Nation’s claims because the Park

Service’s decision to inventory the remains and objects was

a final agency action within the meaning of the

Administrative Procedure Act. The panel also held that by

deciding to undertake NAGPRA’s inventory process, the Park

Service conclusively decided that it, and not the Navajo

Nation, had the present right to “possession and control” of

the remains and objects. 25 U.S.C. § 3003(a). The panel

remanded for further proceedings.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NAVAJO NATION V. USDOI 3

Judge Ikuta dissented because she would hold that

because there was no final agency action reviewable under

§ 704 of the Administrative Procedure Act, the United States

has not waived its sovereign immunity and the court lacks

jurisdiction to hear the appeal.

COUNSEL

Paul Spruhan (argued), Assistant Attorney General; Harrison

Tsosie, Attorney General, Navajo Nation Department of

Justice, Window Rock, Arizona; Paul E. Frye and William

Gregory Kelly, Frye Law Firm, Albuquerque, New Mexico,

for Plaintiff-Appellant.

Mary Gabrielle Sprague (argued); Robert G. Deher, Acting

Assistant Attorney General; David C. Shilton; Andrew C.

Mergen, United States Department of Justice, Environment

& Natural Resources Division, Washington, D.C., for

Defendants-Appellees.

4 NAVAJO NATION V. USDOI

OPINION

CHRISTEN, Circuit Judge:

The Navajo Nation appeals the district court’s dismissal

of its suit seeking immediate return of human remains and

associated funerary objects taken from its reservation. The

Nation describes these remains and objects as “among the

most sacred of [its] property” due to its deep spiritual belief

that upon death humans should be placed in the earth and left

there undisturbed.

Between 1931 and 1990, the National Park Service

removed 303 sets of human remains and associated funerary

objects from Canyon de Chelly National Monument, a sacred

site on the Navajo Reservation. In the mid-1990s, the Park

Service decided to inventory the remains and objects pursuant

to the Native American Graves Protection and Repatriation

Act (NAGPRA) with the ultimate goal of repatriating the

remains and objects to culturally-affiliated tribes. The

Navajo Nation sued seeking, inter alia, an injunction ending

the inventory process and returning the remains and objects.

The Navajo Nation argued that the Park Service’s decision to

inventory the remains and objects instead of returning them

violated Navajo tribal treaties, various statutes, and the Fifth

Amendment to the United States Constitution. The district

court dismissed the suit as barred by sovereign immunity,

reasoning that the Park Service had not yet taken any final

agency action as to its disposition of the remains and objects.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we reverse the district court’s judgment. We hold that the

district court had jurisdiction to consider the Navajo Nation’s

claims because the Park Service’s decision to inventory the

NAVAJO NATION V. USDOI 5

remains and objects was a final agency action within the

meaning of the Administrative Procedure Act. By deciding

to undertake NAGPRA’s inventory process, the Park Service

conclusively decided that it, and not the Navajo Nation, has

the present right to “possession and control” of the remains

and objects. 25 U.S.C. § 3003(a). We reverse the district

court’s order and remand for proceedings consistent with this

decision.

BACKGROUND

Canyon de Chelly is a spectacularly beautiful geological

site consisting of over twenty miles of red sandstone walls

rising hundreds of feet above the ground. See S. Rep. No. 71-

1395, at 2 (1931); Fig. 1.

Figure 11

1

Places Reflecting America’s Diverse Cultures, Nat’l Park Serv.,

http://www.nps.gov/nr/travel/cultural_diversity/Canyon_de_Chelly_

National_Monument.html (last visited Mar. 8, 2016).

6 NAVAJO NATION V. USDOI

Humans have lived in the canyon’s caves for thousands of

years.2 Hopi and Pueblo Indians were the canyon’s primary

occupants from roughly 750 A.D. until the 1600s.3 The

Navajo began living in the canyon in significant numbers

around the late 1600s. Id. Navajo live in the canyon to this

day and consider Canyon de Chelly sacred ground.4 Navajo

creation stories include events in the canyon, and Navajo lore

maintains that key spiritual figures still reside there. See

Kelli Carmean, Spider Woman Walks This Land: Traditional

Cultural Properties and the Navajo Nation x, xvii–xx (2002).

In 1849, the United States and the Navajo Nation signed

a treaty acknowledging that the Navajo Nation was “under

the exclusive jurisdiction and protection of the government of

the said United States.” Treaty Between the United States of

America and the Navajo Tribe of Indians, U.S.-Navajo

Nation, September 9, 1849, 9 Stat. 974, 974. But in 1864 the

federal government forcefully and violently removed the

Navajo from their lands, including Canyon de Chelly, and

relocated them to Fort Sumner, 300 miles away.5 Navajo

villages and food stores were destroyed during the forced

move and hundreds of Navajo died as a result of this forced

2

See Canyon de Chelly - History and Culture, Nat’l Park Serv.,

http://www.nps.gov/cach/learn/historyculture/index.htm (last visited Mar.

8, 2016).

3

Nat’l Park Serv., supra note 1.

4

David M. Brugge & Raymond Wilson, Administrative History: Canyon

de Chelly National Monument Arizona, U.S. Dep’t of the Interior Nat’l

Park Serv. (Jan. 1976), http://www.nps.gov/cach/learn/historyculture/up

load/CACH_adhi.pdf

5

Nat’l Park Serv., supra note 1.

NAVAJO NATION V. USDOI 7

relocation. Kristen A. Carpenter et al., In Defense of

Property, 118 Yale L.J. 1022, 1063 (2009). After four years

of exile, the federal government allowed the Navajo to return

to Canyon de Chelly, id., and in 1868 the United States and

the Navajo Nation signed a second treaty ceasing hostilities

and establishing, among other things, the boundaries of the

Navajo Reservation, which include all of Canyon de Chelly.

Treaty Between the United States of America and the Navajo

Tribe of Indians, U.S.-Navajo Nation, June 1, 1868, 15 Stat.

667, 668. Under this treaty, the Navajo Reservation was “set

apart for the exclusive use and occupation of the Indians.” Id.

at 671.

In 1906, Congress passed the Antiquities Act, which

authorized the President to establish national monuments in

order to protect historic and scientifically significant sites.

See 54 U.S.C. §§ 320101–320303. It also authorized the

Secretaries of the Interior, Agriculture, and War to grant

permits “for the examination of ruins, the excavation of

archaeological sites, and the gathering of objects of

antiquity.” Id. § 320302. The Department of Interior’s

regulations implementing the Antiquities Act do not treat

tribal trust lands differently than other federal land and do not

provide any rights to individual Indians or tribes concerning

the collection or disposition of artifacts or human remains.

See 43 C.F.R. §§ 3.1–3.17. All collections made under the

authority of the Antiquities Act must be kept in public

museums or national depositories. Id. § 3.17.

In 1931, after receiving consent from the Navajo Tribal

Council, the federal government created a national monument

at Canyon de Chelly. 16 U.S.C. § 445. The monument

encompasses Canyon de Chelly, two neighboring canyons,

and lands adjacent to the canyons. Id. The act creating the

8 NAVAJO NATION V. USDOI

monument (the Monument Act) specified that the Navajo

Nation retained title to the lands within the monument, but it

charged the federal government with the “care, maintenance,

preservation and restoration of the prehistoric ruins, or other

features of scientific or historical interest” in the monument.

Id. §§ 445a–445b. Canyon de Chelly National Monument is

the only national monument located on land not owned by the

federal government.6 After the monument’s creation, the

federal government removed certain human remains and

associated cultural objects from the monument without the

consent of the Navajo Nation. The National Park Service

holds at least 303 sets of these remains and objects in its

collection at the Western Archeology Conservation Center in

Tucson, Arizona.

In 1979, Congress passed the Archaeological Resources

Protection Act (ARPA), which established permit

requirements for removing archaeological resources from

public and Indian lands. 16 U.S.C. § 470cc. Unlike the

Antiquities Act, ARPA clearly distinguishes between “public

lands” and “Indian lands” held in trust by the federal

government. See id. § 470bb(3)–(4). Under ARPA, a permit

authorizing excavation or removal of archaeological

resources located on Indian land requires the consent of the

tribe, and tribes are not required to obtain a permit to

excavate or remove archaeological resources on their Indian

lands. Id. § 470cc(g). ARPA’s implementing regulations

provide that “[a]rchaeological resources excavated or

removed from Indian lands remain the property of the Indian

or Indian tribe having rights of ownership over such

resources,” while “[a]rchaeological resources excavated or

removed from the public lands remain the property of the

6

See Brugge & Wilson, supra note 4.

NAVAJO NATION V. USDOI 9

United States.” 43 C.F.R. § 7.13(a)–(b). ARPA requires an

agency to notify Indian tribes of possible harm to or

destruction of sites the tribe may consider to have religious or

cultural importance. Id. § 470cc(c). Further, ARPA gives the

Secretary of the Interior authority to “promulgate regulations

providing for . . . the ultimate disposition” of “archaeological

resources removed from public lands and Indian lands” and

provides that the “ultimate disposition under such regulation

of archaeological resources excavated or removed from

Indian lands shall be subject to the consent of the Indian or

Indian tribe which owns or has jurisdiction over such lands.”

16 U.S.C. § 470dd.

It is uncontested that 297 of the 303 sets of remains and

objects were removed without the Nation’s consent, but the

complaint alleges that in the 1980s the Navajo Nation

consented to the Park Service’s disinterment of six sets of

remains from grave sites being eroded, on the condition that

they be reinterred immediately.7 Instead, according to the

complaint, the Park Service took the remains and added them

to its collection at the Western Archeology Conservation

Center in Tucson, Arizona.

In 1990, Congress enacted the Native American Graves

Protection and Repatriation Act (NAGPRA). See 25 U.S.C.

§§ 3001–3013. Section 3003 of NAGPRA states:

Each Federal agency and each museum which

has possession or control over holdings or

7

The Park Service denies that it agreed to immediately reinter the

remains. But in reviewing the district court’s order granting a motion to

dismiss, we accept the complaint’s allegations as true. See Bill v. Brewer,

799 F.3d 1295, 1299 (9th Cir. 2015).

10 NAVAJO NATION V. USDOI

collections of Native American human

remains and associated funerary objects shall

compile an inventory of such items and, to the

extent possible based on information

possessed by such museum or Federal agency,

identify the geographical and cultural

affiliation of such item.

25 U.S.C. § 3003(a).8 The inventory must include a

description of each set of items, the geographical and cultural

affiliation of the items, information regarding the acquisition

and accession of the items, and a summary of the evidence

used to determine the cultural affiliation of the items. 43

C.F.R. § 10.9(a), (c). “The purpose of the inventory is to

facilitate repatriation by . . . establishing the cultural

affiliation between these objects and present-day Indian tribes

. . . .” Id. § 10.9(a). To that end, in creating the inventory,

the agency must consult with any tribes likely to be

geographically or culturally affiliated with the items.

25 U.S.C. § 3003(b); 43 C.F.R. § 10.9(b). The consultation

process is a tribe’s opportunity to voice its reasons for

seeking repatriation of the items. See 43 C.F.R.

§ 10.9(b)–(c). If the inventory process establishes an item’s

“known lineal descendant” or “cultural affiliation” with an

Indian tribe, then the agency must “expeditiously return” the

item upon request. 25 U.S.C. § 3005(a)(1).

Before NAGPRA’s enactment, the Secretary of the

Interior did not promulgate regulations providing for the

ultimate disposition of any resources excavated or removed

pursuant to ARPA. See Archaeological Resources Protection

8

A separate provision governs the disposition of items excavated or

discovered after NAGPRA’s enactment. See 25 U.S.C. § 3002.

NAVAJO NATION V. USDOI 11

Act of 1979; Final Uniform Regulations, 49 Fed. Reg. 1,016,

1,032 (Jan. 6, 1984). After Congress passed NAGPRA, the

Secretary promulgated regulations providing that NAGPRA

governs the ultimate disposition of any remains and items

covered by both NAGPRA and ARPA. See 43 C.F.R.

§ 7.3(a)(6) (“For the disposition following lawful removal or

excavations of Native American human remains and ‘cultural

items’, as defined by [NAGPRA], the Federal land manager

is referred to NAGPRA and its implementing regulations.”);

Id. § 7.13(e) (“[T]he Federal land manager will follow the

procedures required by NAGPRA and its implementing

regulations for determining the disposition of Native

American human remains and other ‘cultural items’, as

defined by NAGPRA, that have been excavated, removed, or

discovered on public lands.”).

In the mid-1990s, the Park Service began the NAGPRA

inventory process for the remains and objects it removed

from Canyon de Chelly National Monument. As part of this

process, the Park Service began consulting with the Navajo

Nation and the Hopi and Zuni Pueblos.9 Shortly thereafter, in

June 1996, the Navajo Nation sent a letter to the

Superintendent of Canyon de Chelly National Monument

asserting that it owned “all human remains and associated

funerary objects within the National Monument,” and

objecting to the inventory process. The Park Service replied

by letter stating that it would “handle all . . . requests for

repatriation in strict accordance with the NAGPRA” and

9

The Navajo did not populate the Canyon de Chelly region in

significant numbers until around 1700. Before then, predecessors to the

modern Hopi and Pueblo occupied the region. Nat’l Park Serv., supra

note 1.

12 NAVAJO NATION V. USDOI

encouraging the Navajo Nation to participate in the inventory

process.

The Navajo Nation participated, but it did so under

protest.10 Although the record is sparse, it shows that the

Navajo Nation engaged in ongoing dialogue with the Park

Service regarding the Nation’s objections to the NAGPRA

process and claims of ownership, and in 2007 the Park

Service withdrew a draft inventory. Due to the continuing

disagreement between the Park Service and the Navajo

Nation, the Department of the Interior, of which the Park

Service is a bureau, sought an opinion from its Office of the

Solicitor. In an April 2010 email, the Park Service informed

the Navajo Nation that Interior’s solicitor determined the

Park Service “must comply with NAGPRA” and continue to

inventory the remains and objects taken from Canyon de

Chelly National Monument. In a June 2011 inventory

consultation meeting between the Park Service and various

tribes, the Park Service restated the determination made by

Interior’s solicitor that the Park Service must “do NAGPRA

on Canyon de Chelly cultural resources.” The Navajo Nation

asked for a copy of the opinion, but the Park Service

responded that Interior’s solicitor “did not supply an official

opinion,” the opinion was “informally given,” and Interior

would not issue any more opinions on the subject. The

Navajo Nation sent a letter to the Park Service on August 9,

2011, stating its intent to sue if the Park Service did not cease

the inventory process and immediately return the remains and

objects. The Park Service responded with a letter, signed by

10

The Navajo continued to seek the immediate return of the objects

consistent with their belief that exhumation “causes illness[,] . . . damages

crops, natural ecosystems and the environment, and disrupts local and

global weather patterns.”

NAVAJO NATION V. USDOI 13

the Superintendent of Canyon de Chelly National Monument,

that cited the same opinion from Interior’s solicitor and

reiterated the position that the Park Service was “required by

law to complete the NAGPRA process for cultural items

excavated or removed from lands within” Canyon de Chelly

National Monument. By the time this letter was received, the

inventory process had been ongoing for approximately fifteen

years.

In December 2011, the Navajo Nation sued the Park

Service. The complaint alleged that the Park Sevice’s refusal

to immediately return the remains and objects violated the

Treaty of 1849, the Treaty of 1868, NAGPRA, ARPA, the

Administrative Procedure Act (APA), and the Fifth

Amendment to the United States Constitution. The district

court ruled that there had been no final agency action under

the APA, and it dismissed the suit as barred by sovereign

immunity. The Navajo Nation appealed.

STANDARD OF REVIEW

This court reviews de novo a district court’s dismissal for

lack of subject matter jurisdiction. Native Vill. of Kivalina v.

ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir. 2012).

DISCUSSION

“The United States, as sovereign, is immune from suit

save as it consents to be sued, and the terms of its consent to

be sued in any court define that court’s jurisdiction to

entertain the suit.” United States v. Sherwood, 312 U.S. 584,

586 (1941) (citations omitted). The Administrative Procedure

Act (APA) creates a comprehensive remedial scheme for

those allegedly harmed by agency action. See 5 U.S.C.

14 NAVAJO NATION V. USDOI

§§ 701–706. Section 702 of the APA waives sovereign

immunity for suits alleging wrongful agency action or

inaction. Id. § 702. It states:

A person suffering legal wrong because of

agency action, or adversely affected or

aggrieved by agency action within the

meaning of a relevant statute, is entitled to

judicial review thereof. An action in a court

of the United States seeking relief other than

money damages and stating a claim that an

agency or an officer or employee thereof

acted or failed to act in an official capacity or

under color of legal authority shall not be

dismissed nor relief therein be denied on the

ground that it is against the United States . . . .

Id. Section 704 of the APA provides a right to judicial

review of any “final agency action for which there is no other

adequate remedy in a court.” Id. § 704.

The Park Service argues that the district court correctly

dismissed all claims for lack of jurisdiction because the Park

Service has not taken final agency action as to the disposition

of the remains and objects removed from Canyon de Chelly.

In other words, the Park Service contends that the Navajo

Nation seeks to interrupt the inventory process before the

Park Service has determined which tribe is culturally

affiliated with the remains and objects. The Navajo Nation

counters that the Park Service’s decision that NAGPRA

applies to the remains and objects was a final agency action

because that decision triggered the inventory process and

deprived the Navajo Nation of property rights the Nation

claims to enjoy under ARPA and various treaties.

NAVAJO NATION V. USDOI 15

We hold that the decision to apply NAGPRA to the

remains and objects constituted final agency action because

it was the consummation of the Park Service’s

decisionmaking process regarding which statutory scheme

would apply to determine the Navajo Nation’s property

interests in the remains and objects, and significant legal

consequences flow from the decision. Accordingly, we

reverse the district court’s judgment and remand for

consideration of the Navajo Nation’s claims challenging the

applicability of NAGPRA.

In Bennett v. Spear, the Supreme Court stated two

requirements for determining what constitutes a final agency

action under the APA. See 520 U.S. 154, 177–78 (1997).

“First, the action must mark the ‘consummation’ of the

agency’s decisionmaking process . . . .” Id. (quoting Chi. &

S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948)). “[S]econd, the action must be one by which ‘rights

or obligations have been determined,’ or from which ‘legal

consequences will flow.’” Id. (quoting Port of Bos. Marine

Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.

62, 71 (1970)).

As to the first Bennett requirement, an agency’s

determination of its jurisdiction is the consummation of

agency decisionmaking regarding that issue. In Fairbanks

North Star Borough v. U.S. Army Corps of Engineers, the

Army Corps of Engineers determined that a tract of land

contained “waters of the United States” requiring the

landowner to receive a permit from the Corps before

developing the land. 543 F.3d 586, 589–90 (9th Cir. 2008).

We held that because there would be “[n]o further agency

decisionmaking” as to the presence of jurisdictional wetlands

on the property, the jurisdictional decision “mark[ed] the

16 NAVAJO NATION V. USDOI

consummation of the agency’s decisionmaking process as to

that issue.” Id. at 593.

Similarly here, the Park Service’s legal determination that

NAGPRA’s inventory requirements apply to the remains and

objects from Canyon de Chelly “mark[ed] the consummation

of the agency’s decisionmaking process as to that issue.” Id.

In response to the Navajo Nation’s inquiries, the Park Service

sent the Navajo Nation an email notifying it that Interior’s

solicitor determined the remains and objects to be subject to

NAGPRA’s inventory requirements. During an in-person

meeting, a Park Service official declined to provide a copy of

the informal opinion and made clear that no additional

decisionmaking would be forthcoming. The Park Service

refused the Navajo Nation’s request for a formal, written

opinion, replying that Interior’s solicitor’s opinion was

“informally given” and “[t]hat was the opinion they gave.”

On August 9, 2011, the Navajo Nation sent a letter to the Park

Service again requesting formal resolution of its request for

return of the items. In a letter dated September 7, 2011 and

signed by the Superintendent of Canyon de Chelly National

Monument, the Park Service issued its final response to the

demands of the Navajo Nation.

This written decision cited the prior opinion from

Interior’s solicitor and denied the Navajo Nation’s claim that

all the remains and objects be returned to the Navajo Nation

because they belonged to them by virtue of when and where

the remains were excavated. This communicated that the

objects collected before NAGPRA’s effective date would not

be returned prior to completion of the NAGPRA inventory

process, which necessarily meant that some of the remains

and objects might never be returned to the Navajo Nation,

that the six sets disinterred after the enactment of ARPA

NAVAJO NATION V. USDOI 17

would be subjected to the inventory process rather than being

immediately reinterred, and that no further explanation would

be forthcoming regarding NAGPRA’s applicability.

On this record, we have no trouble concluding that the

decision to follow Interior’s solicitor’s guidance and continue

inventorying the remains and objects consummated the Park

Service’s decisionmaking process as to the applicability of

NAGPRA. The dissent argues that the first Bennett

requirement is not satisfied because the Park Service is still

in the process of determining cultural affiliation of the

remains and objects pursuant to NAGPRA, overlooking that

the Navajo Nation argues that NAGPRA’s statutory scheme

does not apply to these objects at all. Contrary to the

dissent’s further assertions, we do not conclude that the Park

Service’s informal request to its lawyers for legal advice

regarding NAGPRA’s applicability was a final agency action.

Nor do we hold that delay and expense transform an

interlocutory decision into final agency action. It is the

agency’s decision to apply NAGPRA to these remains and

objects that constituted a final agency action.

The Park Service decision also meets the second Bennett

requirement because the decision determined the Navajo

Nation’s legal rights in the remains and objects, and legal

consequences flow from the decision. A federal agency’s

decision to apply NAGPRA is the agency’s legal

determination of its property rights in the relevant objects.

Under NAGPRA, the Park Service can only inventory the

remains and objects if it has “possession or control” over

them. 25 U.S.C. § 3003(a). As the district court recognized,

NAGPRA’s implementing regulations specify that possession

means “having physical custody . . . with a sufficient legal

interest to lawfully treat the objects as part of its collection

18 NAVAJO NATION V. USDOI

. . . .” 43 C.F.R. § 10.2(a)(3)(I) (emphasis added). Similarly,

control means “having a legal interest . . . sufficient to

lawfully permit the . . . Federal agency to treat the objects as

part of its collection . . . .” Id. § 10.2(a)(3)(ii) (emphasis

added). The regulations clarify that control may exist

“whether or not the [objects] are in the physical custody of

the . . . Federal agency.” Id.

The Navajo Nation contends that because its 1868 treaty

provides it with the “exclusive use and occupation” of

Canyon de Chelly, it owns the remains and objects that the

Park Service hopes to inventory. The Nation further argues

that the creation of the monument and the adoption of ARPA

reaffirm its ownership interest in the remains and objects and

that the Park Service has no legal interests sufficient to

trigger NAGPRA’s application.

In correspondence with the Navajo Nation, the Park

Service asserted that Interior’s solicitor determined that the

Park Service has “legal possession AND control under

NAGPRA.” Though the Park Service declined to provide a

copy of the solicitor’s opinion, its decision to apply

NAGPRA necessarily determined at least some of the Navajo

Nation’s property rights in the remains and objects.

The district court ruled that the Monument Act granted

the Park Service possession and control of the remains and

objects sufficient to trigger NAGPRA’s inventory process,

but NAGPRA applies only if the Park Service has legal

possession or control over the remains and objects. See 43

C.F.R. § 10.2(a)(3)(I)–(ii). For example, if remains and

objects were loaned to the Park Service, the regulatory

scheme dictates that the Park Service would have no legal

right of possession for purposes of NAGPRA. See id.

NAVAJO NATION V. USDOI 19

§ 10.2(a)(3)(I). It follows that the Park Service’s unexplained

decision to apply NAGPRA to the remains and objects

necessarily forecloses the Nation’s argument that it has

complete ownership of the remains and objects pursuant to its

treaty rights, and that the Monument Act and ARPA only

reaffirm its ownership interest. Further, as to the six sets of

remains disinterred after enactment of ARPA, the Park

Service’s decision that it had a legal interest sufficient to

lawfully permit it to treat the objects as part of its collection

for purposes of NAGPRA denied the Nation’s claim that

these sets were removed with its permission and on the

condition that they be immediately reinterred. Thus, the

decision to apply NAGPRA determined the Nation’s legal

interests in these remains, and legal consequences flowed

from the decision. Under Bennett, this decision constituted

final agency action.

The dissent asserts that the Park Service’s decision to

apply NAGPRA did not determine any legal rights, implying

that the regulatory definitions of the terms “possession” and

“control” apply only to museums. Not so. By their own

terms, the definitions apply to federal agencies. See 43

C.F.R. § 10.2(a)(3)(I) (explaining that “a museum or Federal

agency would not be considered to have possession” of

objects on loan’ (emphasis added)); id. § 10.2(a)(3)(ii)

(defining control as “having a legal interest . . . sufficient to

lawfully permit the museum or Federal agency to treat the

objects as part of its collection” (emphasis added)). This

reading is entirely consistent with the Park Service’s own

interpretation of the regulations.11

11

See NAGPRA Glo ssa ry, Nat’l Park Serv.,

http://www.nps.gov/nagpra/TRAINING/GLOSSARY.HTM (last visited

Mar. 9, 2016) (quoting 43 C.F.R. § 10.2(a)(3)(i)–(ii)).

20 NAVAJO NATION V. USDOI

The definitions of possession and control appear in a

subsection of the implementing regulations that address who

must comply. Id. § 10.2(a). After defining “Federal agency,”

“Federal agency official,” and “Museum,” the regulation

defines “possession” and “control” in separate subparagraphs.

Id. § 10.2(a)(1)–(3). In other paragraphs of this definitions

section, where the drafters wanted a subparagraph to apply

only to the term defined in the immediately preceding

paragraph, the drafters so indicated with a colon. See id.

§ 10.2(d)(2), (f)(2), (g)(5). By contrast, the definition of

“museum” concludes with a period. See id. § 10.2(a)(3). The

only way to read this structure consistently with the rest of

the regulation is to read “possession” and “control” to apply

to “Federal agency,” “Federal agency official,” and

“Museum.” See generally, Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts

161–65 (2012) (“Punctuation is a permissible indicator of

meaning.”). Finally, the dissent’s interpretation would read

the statute as using the words “possession” and “control” to

mean lawful possession and control when applied to museums

but mean only physical possession and control when applied

to federal agencies. Nothing in the regulatory scheme

suggests this result. See id. at 170–73 (“A word or phrase is

presumed to bear the same meaning throughout a text.”).

The dissent also asserts that because the NAGPRA

inventory process provides a method for determining ultimate

ownership of remains and objects, an Indian tribe’s property

interests in the remains and objects may only be determined

at NAGPRA’s conclusion. We read the sequence of events

in NAGPRA’s statutory scheme similarly as the dissent. But

the dissent’s position assumes away the threshold question of

whether NAGPRA’s statutory scheme applies in the first

place. Here, the Navajo Nation asserts a superior property

NAVAJO NATION V. USDOI 21

interest in the remains and objects deriving from treaties and

statutes that predate NAGPRA. We do not prejudge whether

the Nation’s attacks on NAGPRA’s applicability are correct,

we merely hold that the district court had jurisdiction to

consider them.

The dissent argues that Congress did not intend an agency

to make a legal determination of possession and control as a

part of the NAGPRA process. We agree. But because the

Navajo Nation has challenged the invocation of the NAGPRA

process, it is incumbent on the court to determine NAGPRA’s

applicability. Congress was clear that NAGPRA’s inventory

requirements only apply to “[e]ach Federal agency and each

museum which has possession or control” over remains and

objects. 25 U.S.C. § 3003(a). Section 10.2 of NAGPRA’s

implementing regulations answers the question “[w]ho must

comply with these regulations?” by defining “Federal

agency” and the terms “possession” and “control.” 43 C.F.R.

§ 10.2(a). The Park Service’s threshold determination that

NAGPRA applies is subject to judicial review.

The dissent separately argues that the Park Service’s

decision to apply NAGPRA does not satisfy the second

Bennett factor because the Navajo Nation could simply

choose not to participate in the NAGPRA process.12 But

12

Relatedly, the dissent argues the Navajo Nation’s claims can be

vindicated at the conclusion of NAGPRA and that the Nation will be made

whole if the remains and objects are eventually returned. This is only

partially correct. As explained, the remains and objects are sacred and

their continued disinterment is alleged to cause unique harm. Further, the

regulation the dissent cites for the proposition that superior property rights

can only be asserted at the conclusion of the NAGPRA process, 43 C.F.R.

§ 10.11(e), states that district courts may hear “any action brought that

22 NAVAJO NATION V. USDOI

NAGPRA requires the Park Service to complete its

inventories “in consultation with tribal government[s],”

25 U.S.C. § 3003(b)(1)(A), and to seek information from

tribes, including contact information for traditional religious

leaders and information about the “[k]inds of objects that the

[tribe] reasonably believes to have been made exclusively for

burial purposes or to contain human remains of their

ancestors.” 43 C.F.R. § 10.9(b)(4)(ii)–(iii). Here, the Park

Service has had several in-person meetings with tribal

officials to attempt to determine cultural affiliation of the

remains and objects. The dissent’s suggestion that the Nation

forego the right to consultation and attack the NAGPRA

process at its conclusion overlooks that by sitting on the

sidelines, the Nation would miss its best opportunity to

establish that the remains and objects are culturally affiliated

with the Navajo if the inventory process goes forward. The

dissent also overlooks the Navajo Nation’s assertion that it

suffers a continuing harm as long as the remains are

disinterred and not returned to their tribal lands.

The Park Service argues that the Navajo Nation’s claims

are unripe and that the Navajo Nation failed to exhaust

administrative remedies because the NAGPRA inventory

process is still ongoing, and the Park Service has not yet

decided which of the remains is culturally affiliated with

which tribe. But the Park Service’s argument is built on the

flawed premise that the Navajo Nation asserts only that the

remains should be repatriated to it pursuant to NAGPRA. In

fact, the Navajo Nation claims that NAGPRA does not apply

at all because the Navajo Nation, and not the Park Service,

has the right to immediately possess and control the remains

alleges a violation of [NAGPRA].” It says nothing about when such an

action may be brought.

NAVAJO NATION V. USDOI 23

and objects. The Navajo Nation asserts that this right to

immediate possession and control flows from the Navajo

Nation’s treaty right to “exclusive use and occupation” of

Canyon de Chelly. The Navajo Nation further asserts that

both the 1931 Act creating Canyon de Chelly National

Monument and ARPA confirm its right to immediate

possession and control.

Determining whether an agency’s decision is ripe for

review “requir[es] us to evaluate both the fitness of the issues

for judicial decision and the hardship to the parties of

withholding court consideration.” Abbott Labs. v. Gardner,

387 U.S. 136, 149 (1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99, 97 (1977). Here, the Park

Service’s continued possession of the remains and objects

exacts a unique and significant hardship on the Navajo

Nation. The Navajo believe that exhumation “causes

illness[,] . . . damages crops, natural ecosystems and the

environment, and disrupts local and global weather patterns.”

By suing for return of the remains, the Navajo Nation seeks

to end the Park Service’s longstanding “exercise [of]

dominion and control over these remains and objects, among

the most sacred of the Nation’s property.” The question of

NAGPRA’s application is fit for review because it is a purely

legal question applied to discrete facts and significant legal

consequences flow from the decision. See id.

Further, the Navajo Nation has exhausted all available

administrative remedies for seeking review of the decision to

apply NAGPRA and for obtaining possession of the remains

and objects. In the fifteen years prior to filing suit, the

Navajo Nation repeatedly demanded an explanation of the

Secretary’s decision that NAGPRA applies, as well as return

of the remains and objects. Their efforts yielded only

24 NAVAJO NATION V. USDOI

correspondence reporting that Interior’s solicitor opined that

NAGPRA applies to the remains and objects, and that no

further opinion will be provided by the agency.

Because both prongs of the Bennett test are met, we

reverse the district court’s order and remand for review of the

Navajo Nation’s claims challenging the applicability of

NAGPRA.13

REVERSED and REMANDED.

IKUTA, Circuit Judge, dissenting:

Congress mandated that the National Park Service (Park

Service) follow a process for identifying which tribes are

entitled to receive the human remains and archeological

artifacts removed from the Canyon de Chelly. That process,

codified in the Native American Graves Protection and

Repatriation Act (NAGPRA), provides for repatriation of

human remains and associated artifacts to their known

descendants. See 25 U.S.C. §§ 3001–3013. The Park Service

is slowly implementing the NAGPRA process with respect to

the human remains and artifacts in its possession. Its snail-

like progress is in part attributable to the ongoing resistance

of the Navajo Nation, which objects to Congress’s process,

13

Our decision moots the Navajo Nation’s remaining jurisdictional

arguments. We need not decide whether the Park Service “unlawfully

withheld” agency action within the meaning of 5 U.S.C. § 706(1). Nor do

we decide whether Congress waived sovereign immunity as to non-APA

claims challenging intermediate agency actions. See Gros Ventre Tribe

v. United States, 469 F.3d 801, 809 (9th Cir. 2006).

NAVAJO NATION V. USDOI 25

and has filed suit against the Park Service for an immediate

declaration that it owns all the human remains and artifacts

that were removed from the Canyon. Although the Navajo

Nation may be frustrated, a federal court cannot hear such an

action unless the United States has waived its sovereign

immunity under § 704 of the Administrative Procedure Act

(APA),1 which makes reviewable a “final agency action for

which there is no other adequate remedy in a court.” 5 U.S.C.

§ 704; Maj. op. at 13–14.

Despite the fact that the Park Service has not even come

close to taking a final agency action, today the majority

decides to take matters into its own hands. It selects virtually

at random one of the many steps in the Park Service’s

ongoing effort and claims it constitutes a final agency action,

Maj. op. at 16–17. Because this decision is contrary to both

the APA and our precedents, I dissent.

I

The Park Service’s slow-motion implementation of the

NAGPRA process mirrors the long history of the Canyon de

Chelly. The Canyon has been inhabited by humans for nearly

4,500 years and has been home to permanent settlements for

about 2,000 years. Starting around 750 A.D. the Canyon

became home to the ancient Pueblo, sometimes referred to as

the Anasazi. The ancient Pueblo remained in the Canyon

until about 1300, when they left to seek better farmlands.

Their descendants, the Hopi Indians, continued to live in the

Canyon until about 1600. The modern Zuni and Hopi Indians

1

Because the majority focuses on § 704 of the APA, I do not address

whether the Navajo Nation could maintain its action under 5 U.S.C. § 702.

26 NAVAJO NATION V. USDOI

are the descendants of the ancient Pueblo. The Navajos are

relative newcomers, arriving at the Canyon around 1700.

The federal government’s involvement in the collection

and preservation of human remains and artifacts from the

Canyon de Chelly dates back to 1906, when the Antiquities

Act, 54 U.S.C. § 320302 (1906), authorized federal agencies

to issue permits for the excavation and collection of

archaeological artifacts so long as they were preserved in

public museums. Under the authority of this act, the

Park Service removed and preserved some 297 sets of

human remains from the Canyon de Chelly. In 1979, the

Archaeological Resources Protection Act (ARPA), 16 U.S.C.

§§ 470aa–470mm (1979), added new permit requirements,

and the Park Service removed an additional six sets of

remains pursuant to a federal permit. In all, the Park Service

removed 303 sets of remains from the Canyon before

NAGPRA was enacted in 1990. The Park Service preserved

all 303 sets of remains at the Western Archaeology

Conservation Center in Tucson, Arizona.

It was not until 1990 that Congress enacted NAGPRA,

which “provides a framework for establishing ownership and

control of (1) newly discovered Native American remains and

funerary objects (collectively ‘cultural items’) and (2) cultural

items already held by certain federally funded museums and

educational institutions.” White v. Univ. of Cal., 765 F.3d

1010, 1016 (9th Cir. 2014) (citing 25 U.S.C. §§ 3001–3013);

see also 43 C.F.R. § 10.1. With respect to pre-existing

collections of human remains and artifacts, NAGPRA

requires federal agencies and museums with “possession or

control over [such] holdings or collections” to “compile an

inventory” of the items and “identify the geographical and

cultural affiliation of such item[s]” where possible. 25 U.S.C.

NAVAJO NATION V. USDOI 27

§ 3003(a). Once the federal agency or museum has identified

the cultural affiliation of the object, it must notify the affected

tribes and publish a public notice in the Federal Register. Id.

§ 3003(d).

After the cultural affiliation process is complete, Native

American human remains and associated artifacts must be

expeditiously repatriated to “a known lineal descendant of the

Native American” or of the affected tribe, upon request of

that descendant or tribe. Id. § 3005(a)(1). Other cultural

artifacts may be returned to individuals or tribes that “owned

or controlled” the items. Id. § 3005(a)(5). An agency may

retain artifacts only if it has the “right of possession,”

meaning that the items were “obtained with full knowledge

and consent of the next of kin or the official governing body”

of the relevant tribe. Id. §§ 3001(13), 3005(c).

The regulations provide a robust dispute resolution

process to address disagreements about the implementation

of NAGPRA or the disposition of cultural artifacts. A

federal agency’s “final denial of a request . . . for the

repatriation or disposition of human remains [and cultural

objects] brought under, and in compliance with [NAGPRA]

constitutes a final agency action under the Administrative

Procedure Act (5 U.S.C. 704).” 43 C.F.R. § 10.1(b)(3).

When there are multiple requests for repatriation, and the

competing claimants cannot resolve their dispute through

informal negotiations, they may bring an action in district

court. Id. §§ 10.10(c)(2), 10.11(e), 10.17. Further, a party

claiming legal property rights to the human remains or

artifacts that supersede NAGPRA can vindicate those claims

in court. Id. § 10.11(e)(3).

28 NAVAJO NATION V. USDOI

As mandated by NAGPRA, the Park Service started the

inventory process for all 303 sets of remains in the mid-

1990s. Pursuant to § 3003(a), the Park Service began

consulting with the Navajo Nation, Hopi, and Zuni regarding

the cultural affiliation of the remains. 25 U.S.C.

§ 3003(b)(1)(A). By 1996 the Park Service had compiled a

draft inventory, which it shared with the participating tribes.

The draft inventory identified some of the remains as

belonging to ancestral Puebloans. Under NAGPRA, such a

finding would generally require the Park Service to return the

remains to the Hopi and Zuni Tribes, the known lineal

descendants of the Puebloans, upon their request. Id.

§ 3005(a).

After the Park Service circulated the draft inventory, the

Navajo Nation objected to the NAGPRA process and claimed

that all “human remains and funerary objects” found in the

Canyon de Chelly are “property of the Navajo Nation” by

virtue of the Navajo’s land ownership. The Park Service

stated it would respond to “any requests for repatriation in

strict accordance with the NAGPRA.” This response did not

satisfy the Navajo Nation. Faced with the Navajo Nation’s

resistance, the Park Service put the inventory process on hold.

In 2010, the Park Service asked lawyers at the Division of

Parks and Wildlife and Division of Indian Affairs for advice.

The Park Service’s lawyers informally confirmed that for

purposes of NAGPRA, the Park Service had possession and

control of the items that had been removed from the Canyon

de Chelly and that these archeological resources were not

exempt from NAGPRA’s repatriation procedures. Therefore,

according to the lawyers, the Park Service was bound to

comply with the procedure set forth in the statute and

regulations. This advice was provided informally; the Park

NAVAJO NATION V. USDOI 29

Service later explained that it takes at least three years to

obtain an official legal opinion. In June 2011, the Park

Service informed the Navajo Nation about the informal

advice of its lawyers and its intention to move forward with

the NAGPRA process.

Two months later, the Navajo Nation sent a formal

demand letter to the Park Service and threatened to sue unless

the Park Service turned over all human remains and artifacts

to the Navajo Nation immediately. In its response on

September 7, 2011, the Park Service stated that its position

remained that it was required by law to complete the

NAGPRA process. It hoped that the Navajo Nation would

develop an agreement with the Hopi and Zuni Pueblo tribes

so that they “would have more consistent input into the [Park

Service’s] final decision” regarding repatriation of the

remains. The letter also stated the Park Service’s hope that

the Navajo Nation would not engage in litigation, which

would cause further delays. The Park Service concluded by

stating that it continued “to believe that we can work through

our differences in a cooperative and collaborative manner.”

The Navajo Nation then initiated this lawsuit.

II

A review of the applicable law makes clear that no event

in the Park Service’s implementation of NAGPRA to date

constituted a final agency action.

To be final for purposes of § 704, an agency action must

satisfy two requirements. First, the agency action “must mark

the ‘consummation’ of the agency’s decisionmaking process

. . . it must not be of a merely tentative or interlocutory

nature.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)

30 NAVAJO NATION V. USDOI

(internal citation omitted). Second, “the action must be one

by which rights or obligations have been determined, or from

which legal consequences will flow.” Id. at 178 (internal

quotations omitted). The elements of both Bennett prongs

have been clearly delineated.

For an action to “mark the consummation of the agency’s

decisionmaking process” under the first Bennett prong, there

must be an established “formal procedure,” Fairbanks N.

Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586,

592–93 (9th Cir. 2008), in which the agency “evaluate[s] the

merits of [the issue] to arrive at a reasoned, deliberate

decision,” see ONRC Action v. Bureau of Land Management,

150 F.3d 1132, 1136 (9th Cir. 1998). A final decision must

establish an official position that is “considered, definite and

firm,” Fairbanks, 543 F.3d at 593, and constitutes the

agency’s “last word on the matter,” Or. Nat. Desert Ass’n v.

U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006). A

federal agency’s informal recommendation or assessment is

not a final agency action. See City of San Diego v. Whitman,

242 F.3d 1097, 1101–02 (9th Cir. 2001); Aminoil U.S.A., Inc.

v. Cal. State Water Res. Control Bd., 674 F.2d 1227, 1231

(9th Cir. 1982). Nor is an agency’s notice of its plans to

make a decision in the future. See Gen. Atomics v. U.S.

Nuclear Regulatory Comm’n, 75 F.3d 536, 540 (9th Cir.

1996); Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 263–64

(9th Cir. 1990). As a practical matter, this means that final

agency decisions are virtually always written and generally

published. See, e.g., Sackett v. EPA, 132 S. Ct. 1367,

1370–72 (2012) (formal, written EPA compliance order); Or.

Nat. Desert Ass’n, 465 F.3d at 979–80 (written annual

operating instructions, which functioned as a grazing permit,

issued to Forest Service permit holders); Bennett, 520 U.S. at

NAVAJO NATION V. USDOI 31

177–78 (written Biological Opinion provided by the Fish and

Wildlife Service).

To satisfy the second Bennett prong, an agency’s decision

must have the force and effect of law and be binding on the

plaintiff. The decision must require the plaintiff to do or

forbear from some action, see Fairbanks, 543 F.3d at 593,

such that the plaintiff’s only choice is whether to comply with

or defy a legal requirement, see FTC v. Standard Oil Co. of

Cal., 449 U.S. 232, 239–40 (1980). An expression of the

agency’s view regarding what the law requires is not enough,

Fairbanks, 543 F.3d at 594, nor is a decision that a statute

applies to an activity or individual, see Hale v. Norton,

476 F.3d 694, 697 (9th Cir. 2007) (holding that a Park

Service decision that landowners were subject to permit

requirements was not a final agency action under Bennett);

Hecla Mining Co. v. EPA, 12 F.3d 164, 165–66 (9th Cir.

1993) (holding that the decision to include a river and mine

on the lists subjecting them to permit requirements “is not the

final agency action necessary to state a cause of action under

§ 704 of the APA”).

Further, the agency’s decision must have legal and not

merely practical consequences. It is well established that

agency actions subjecting the plaintiff to a “greater risk of

increased fines,” an “onerous administrative maze,” or further

agency proceedings are not final, as these are practical

effects, not legal consequences. Fairbanks, 543 F.3d at

595–96. Even an agency decision that causes immediate

financial impacts or triggers profound economic

consequences is not final under the second Bennett prong, as

these too are merely practical effects. See id. Rather, an

agency’s decision is final if it has tangible legal consequences

32 NAVAJO NATION V. USDOI

or otherwise alters the legal relationship between the parties.

Id. at 594.

III

The Park Service’s continuation of the NAGPRA

inventory process meets neither of the Bennett prongs and so

is not a final agency action.

First, there has been no “consummation” of any

decisionmaking process. The majority asserts that “the [Park

Service’s] decision to apply NAGPRA to these remains and

objects . . . constituted a final agency action.” Maj. op. at 17.

But the Park Service decided that NAGPRA was applicable

to its 303 sets of remains two decades ago, when it

commenced the NAGPRA process. The Park Service’s long-

ago decision to comply with NAGPRA did not mark the

“consummation” of any decisionmaking process, but rather

its beginning. See Hale, 476 F.3d at 697; Hecla Mining Co.,

12 F.3d at 165–66 (holding that an agency’s decision to

initiate regulatory proceedings does not constitute a final

agency action because it is “merely preliminary”).

Nor did the Park Service’s 2010 request to its lawyers for

confirmation that NAGPRA applied constitute a final

determination of the Park Service’s jurisdiction. The

informal request occurred some 15 years after the Park

Service began applying NAGPRA, and merely represented

the continuation of the NAGPRA process. See ONRC Action,

150 F.3d at 1136. Indeed, if an agency is deemed to take a

“final agency action” every time it asks its lawyers whether

it is following the law, agencies will either be subject to

challenge regarding every internal, interlocutory decision—or

will have to banish government lawyers from every

NAVAJO NATION V. USDOI 33

government building. The Supreme Court rejected such a

result in Bennett, holding that it was “loathe” to permit

review of every procedural step taken by an agency,

especially those “that had not yet resulted in a final

disposition of the matter at issue.” 520 U.S. at 174.

Likewise, the Park Service’s September 2011 letter to the

Navajo Nation merely reiterated that “[t]he position of the

[Park Service] and the advice of our solicitors . . . remains

that we are required by law to complete the NAGPRA

process.” (emphasis added). While the majority characterizes

this letter as a “final response to the demands of the Navajo

Nation,” Maj. op at 16, nothing in the letter suggests it is

anything more than another response in the ongoing dialogue

with the Navajo Nation.

In short, no case identified by the Navajo Nation or the

majority comes close to suggesting that an agency’s decision

to stay the course, bolstered by informal advice from counsel,

constitutes the “consummation of the agency’s

decisionmaking process.”2 There is nothing in the record

resembling the formal Biological Opinion at issue in Bennett,

520 U.S. at 177, or the written grazing permit addressed in

ONDA, 465 F.3d at 980. There is thus no support for the

majority’s claim that the Park Service’s decision to continue

with the NAGPRA process after obtaining its lawyers’ advice

marked the consummation of the Park Service’s

2

The Navajo Nation argues that Bonnichsen v. United States is such a

case. 367 F.3d 864 (9th Cir. 2004). Its reliance is misplaced because that

opinion did not address whether the decision to apply NAGPRA to

remains that were possibly non-Indian was a final agency action. Rather,

the issue of finality was decided by the district court and not appealed.

See Bonnichsen v. U.S. Dept. of the Army, 969 F. Supp. 628, 637–38 (D.

Ore. 1997).

34 NAVAJO NATION V. USDOI

decisionmaking process regarding its jurisdiction. Maj. op.

at 16–17.

The second Bennett factor is also lacking here. The Park

Service’s decision to proceed with the NAGPRA process

does not impose any obligation on the Navajo Nation, and so

is not “one by which rights or obligations have been

determined or from which legal consequences will flow.”

Bennett, 520 U.S. at 178 (internal quotation marks and

punctuation omitted). The Navajo Nation is not put to the

choice of compliance or defiance with any requirement, see

Standard Oil, 449 U.S. at 239–40; rather, it is free to decline

to participate in the inventory process. See 25 U.S.C.

§ 3003(b); 43 C.F.R. § 10.9(b).3 The Park Service’s decision

to move forward may indeed have practical effects, in that it

will delay vindication of the Navajo Nation’s alleged

entitlement to the human remains and artifacts and will

impose some costs if the Navajo Nation chooses to participate

in the NAGPRA process. And while the Navajo Nation’s

decision not to participate in the NAGPRA process may also

have practical effects, see Maj. op. at 21–22, a practical

burden is not a legal burden, and any additional delay and

expense are insufficient to make an agency decision final

even if they turn out to be quite substantial. See Standard

Oil, 449 U.S. at 242 (“Although [the burden of responding to

agency enforcement] certainly is substantial, it is different in

kind and legal effect from the burdens attending what

heretofore has been considered to be final agency action.”).

3

While NAGPRA requires that the Park Service seek to consult with

tribal governments during the cultural affiliation process, see Maj. op. at

21–22; 25 U.S.C. § 3003(b)(1)(A); 43 C.F.R. § 10.9(b)(4), nothing in

NAGPRA requires the Navajo Nation to cooperate.

NAVAJO NATION V. USDOI 35

The majority claims that the Park Service’s decision to

continue with the NAGRPA inventory process “necessarily

meant that some of the remains and objects might never be

returned to the Navajo Nation,” Maj. op. at 16, and

“necessarily forecloses the Nation’s argument that it has

complete ownership of the remains and objects pursuant to its

treaty rights,” Maj. op. at 19. The majority is simply

mistaken. Once the NAGPRA process is complete, the

Navajo Nation will be free to raise all the claims it brings

today—including its challenges to the disposition of the

human remains and artifacts, its claim that the Park Service

breached an agreement to re-inter six sets of remains, see

Maj. op. at 19, and its argument that it has legal property

rights in the items that supersede the NAGPRA process. See

43 C.F.R. §§ 10.10(c)(2); 10.11(e).4

The majority’s theory that the Park Service made a

reviewable “threshold determination” of its property rights in

the remains and artifacts before applying NAGPRA, Maj. op.

at 19–21, is completely backwards. Neither NAGPRA nor its

implementing regulations require a federal agency to formally

and finally determine whether it has “possession or control

over” Native American artifacts before instituting the

NAGPRA process. See 25 U.S.C. § 3003; 43 C.F.R. § 10.2.

4

The majority mischaracterizes 43 C.F.R. § 10.11(e) by claiming that

it “says nothing about when such an action may be brought.” Maj. op. at

21–22 n.12. By its own terms, § 10.11 applies to disputes “regarding the

disposition of culturally unidentifiable human remains and associated

funerary objects,” 43 C.F.R. § 10.11(e) (emphasis added), that arise after

the NAGPRA inventory process is complete, id. § 10.11(a) (“This section

. . . applies to human remains previously determined to be Native

American under § 10.9, but for which no lineal descendant or culturally

affiliated Indian tribe or Native Hawaiian organization has been

identified.”).

36 NAVAJO NATION V. USDOI

To the contrary, it is a federal agency’s decision that

NAGPRA is not applicable which is deemed to be a final

agency action subject to review. 43 C.F.R. § 10.1(b)(3). An

agency’s decision that it has the requisite possession and

control of human remains and artifacts to apply NAGPRA is

not final or reviewable until after the inventory process is

complete. See id. §§ 10.1(b)(3), 10.10(c). Nor can we infer

that Congress intended an agency to make a formal

determination of its legal rights to human remains and

artifacts before applying NAGPRA. Congress knew how to

require a determination of ownership rights when it wanted

one, as NAGPRA expressly provides guidance for

determining the “ownership or control” of Native American

cultural items excavated after 1990, 25 U.S.C. § 3002(a), and

establishes a process for determining whether agencies or

museums have a “right of possession” to objects in their

collections, id. § 3005(c). Both of these determinations are

made at the end of the NAGPRA process, along with all the

other repatriation decisions. Nothing in NAGPRA requires

the threshold determination that the majority relies on, and

Congress’s omission of such a provision indicates that it did

not want any such threshold determination to occur.

The majority nonetheless claims that § 10.2 of the

regulations requires the Park Service to ascertain whether it

has a legal interest in the remains or artifacts before it starts

the NAGPRA process. Maj. op. at 19–21. By its terms,

however, § 10.2 merely defines the term “museum,” and

provides a safe harbor for museums that have borrowed

cultural items from a third party.5 The applicability of this

5

Section 10.2 answers the question “Who must comply with these

regulations?” as: “federal agency,” “federal agency official,” and

“museum.” 43 C.F.R. § 10.2(a)(1)–(3). “Museum” is defined as “any

NAVAJO NATION V. USDOI 37

regulation is therefore irrelevant for present purposes: only a

museum’s decision that it did not have possession or control

of the items in its collection would be subject to immediate

legal review, id. § 10.1(b)(3), while a museum’s decision to

apply NAGPRA would be reviewable only at the end of the

process, see id. §§ 10.1(b)(3), 10.10(c).

Here, the relevant question is who is entitled to obtain the

human remains and artifacts currently in the Park Service’s

hands, and that is the very question which NAGPRA is

designed to answer. The Navajo Nation’s claims to the

human remains and artifacts are not superior on their face to

the claims of the Hopi and Zuni Tribes, and federal law

requires the Park Service to proceed through a step-by-step

process for making these cultural affiliation and repatriation

determinations. The Navajo Nation’s desire to short-circuit

institution or State or local government agency (including any institution

of higher learning) that has possession of, or control over, human remains,

funerary objects, sacred objects, or objects of cultural patrimony and

receives Federal funds.” Id. § 10.2(a)(3) (emphasis added). In three

subsections under the definition of museum, the regulations define each

of the key terms in that definition: “possession,” id. § 10.2(a)(3)(i),

“control,” id. § 10.2(a)(3)(ii), and “receives Federal funds,” id.

§ 10.2(a)(3)(iii). The definition of “possession,” as used in the definition

of “museum,” is “having physical custody of human remains, funerary

objects, sacred objects, or objects of cultural patrimony with a sufficient

legal interest to lawfully treat the objects as part of its collection for

purposes of these regulations.” Id. § 10.2(a)(3)(i). The regulation then

explains that “[g]enerally, a museum or Federal agency would not be

considered to have possession of human remains, funerary objects, sacred

objects, or objects of cultural patrimony on loan from another individual,

museum, or Federal agency.” Id. Because this language is included as

part of the definition of “museum,” it provides a safe harbor for museums

that do not want to engage in the expense of applying NAGPRA to items

that are on loan from a third party, but would face penalties under § 10.2

if they failed to implement the NAGPRA process as required by statute.

38 NAVAJO NATION V. USDOI

Congress’s plan is not sufficient to transform that ongoing

process into a “final agency action.”

IV

In sum, the Park Service is making a good faith effort to

comply with federal law, which requires it to engage in a

deliberate and open process to determine who is entitled to

the human remains and artifacts it currently holds. The

majority’s strained attempt to detect a “final agency action”

occurring at some point along the way, without a

decisionmaking process, a written decision, or a

determination that has any legal effect on the Navajo Nation,

has no support in the record or in our precedent. Because

there is no final agency action reviewable under § 704, the

United States has not waived its sovereign immunity and we

lack jurisdiction to hear this appeal. Accordingly, I dissent.