By Joe Sexton
A recent Ninth Circuit decision in favor of the Navajo Nation sheds light on the difficulties tribal communities face bringing their Ancestors home after their resting places are disturbed and their skeletal remains are exhumed. Of course, how many indigenous people have permanently lost their Ancestors’ remains due to looting by non-Indians is unknown.
But what happens when the federal government, i.e. American Indian tribes’ trustee, possesses ancestral remains and refuses to return them?
As the dispute in Navajo Nation v. United States reveals, tribes seeking to recover their Ancestors’ remains from their trustee face a complex and nearly impassible web of federal laws, regulations, and labyrinthine bureaucracy and usually litigation–all of which take years if not decades to navigate with no guarantee of success, even when “ownership” is clear and unambiguous.
Ironically, federal bureaucrats exploit laws like the Native American Graves Protection Act (NAGPRA) to throw up roadblocks leading to indefinite delays, as has been the case in Navajo Nation. In that case, over a period of roughly 60 years from 1931 to 1990, the federal government “removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation.”
The Navajo’s Treaty with the United States stipulates that the Navajo Reservation, which includes the Canyon de Chelly National Monument, was “set apart for the exclusive use and occupation” of the Navajo Nation.
Yet for whatever reason, for those six decades the federal government saw fit to disturb hundreds of indigenous graves and remove the human remains and other funerary objects laid within those graves from land it knew was owned by the Navajo Nation; land that was unquestionably set apart for the Nation’s exclusive use.
When the Navajo descendants of those remains demanded return of their Ancestors, the federal government advised the Navajo Nation that under NAGPRA it was required to “inventory” the human remains and associated funerary objects. That was twenty years ago with no final resolution in sight.
In 1996 the Navajo Nation sent a letter to the Superintendent of Canyon de Chelly National Monument asserting ownership over “all human remains and associated funerary objects within the National Monument.” The federal government replied by letter, stating that it would “handle all . . . requests for repatriation in strict accordance with NAGPRA.”
In other words, effectively the federal government decided then that the Navajo Nation was not entitled to possession of the skeletal remains of Navajo Ancestors that had been exhumed from graves situated on Navajo Treaty lands until and unless the government completed its inventory process under NAGPRA, and then found under the statute and its regulations that the remains are “Native American” and affiliated with the Navajo Nation.
In order to make such a finding, the Navajo Nation would be forced prove—to the satisfaction of the federal government and possibly a number of federal judges—a cultural and/or biological relationship between their Ancestors’ remains and the Navajo Nation as it exists today.
It’s twenty years later, and the Navajo Nation has still not won the battle for its Ancestors’ remains. Although the Ninth Circuit ruled in the Nation’s favor this month, this ruling merely reversed the trial court’s dismissal of the Nation’s lawsuit. The federal district court had dismissed the case based on its conclusion that it lacked subject matter jurisdiction because the Department of the Interior had not made a final agency action appealable under the Administrative Procedures Act.
Put simply, the Ninth Circuit overruled the district court’s dismissal, holding that when the Department of the Interior made the determination that NAGPRA applied in 1996, it made an appealable final agency action. As the opinion notes:
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.
Thus, what the Navajo Nation has really won is the chance to make its case in federal court that it “owns” its Ancestors’ remains removed from its lands, and that those remains should not be subject to some indefinite NAGPRA inventory process and determination of Native American-ness overseen by federal bureaucrats. In other words, the Nation has “won” the opportunity to go back to the district court and undertake what is likely to be several more years of litigation before it might finally get the opportunity to rebury its Ancestors.
Unfortunately for other tribes whose Ancestors were laid to rest outside of their reservation lands—but nonetheless on lands the tribes occupied before they were forcibly removed to reservations—this case of “ownership” that the Navajo Nation has made is unavailable to them. As the Ninth Circuit opinion notes:
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 [under NAGPRA].
The Navajo Nation’s argument that no NAGPRA process is required—and consequently, that the federal government’s decision to proceed under NAGPRA is appealable—rests on the fact that the remains at issue here were exhumed from Navajo Nation lands. Accordingly, tribes facing a similar situation, but with Ancestors laid to rest outside their reservation boundaries, are left with little recourse but to proceed under the years-long expensive processes prescribed under NAGPRA and similar laws.
As the case of the “Ancient One” (or, as he is better known in the non-Indian world, “the Kennewick Man”) demonstrates, NAGPRA is a bureaucratic black hole for tribes. In that case, after more than a decade of expensive litigation and scientific research supporting biological and cultural affiliation between the Ancient One and its claimant tribes—including state-of-the-art and conclusive DNA evidence—the Ancient One’s remains have still not been returned to his descendants for repatriation.
In the meantime, countless Indian graves remain disturbed if not wholly excavated. And to maintain that status quo, the federal government wields against tribes the very legislation that was passed under the auspices of protecting these imperiled burial grounds. The Indian trustee uses NAGPRA to keep the Ancestors on the shelves of warehouses and museums, subject to years of “inventory” and legal process.
Joe Sexton is Of Counsel with Galanda Broadman, PLLC. Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters. He can be reached at (509) 910-8842 and firstname.lastname@example.org.
 Navajo Nation v. U.S. Department of the Interior, D.C. No. 3:11-cv-08205- PGR, 2016 WL 1359869 (9th Cir. 2016).
 Id. at 1.
 Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, June 1, 1868, 15 Stat. 667, 671.
 Navajo Nation, 2016 WL 1359869 at 11.
 See Bonnichsen, et al. v. United States et al., 217 F.Supp.2d 1116, 1136 (D. Or. 2002), aff’d 367 F.3d 864 (9th Cir. 2003), holding that “NAGPRA defines ‘Native American’ as ‘of, or relating to, a tribe, people or culture that is indigenous to the United States’ . . . Giving the ‘plain language’ of this provision its ordinary meaning, the use of the words ‘is’ and ‘relating’ in the present tense requires a relationship [between the remains and] a presently existing tribe, people, or culture.”
 Navajo Nation, 2016 WL 1359869 at 15.
 Id. at 18.