UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No NAVAJO NATION, Plaintiff-Appellant,

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 1 of 73 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 13-15710 NAVAJO NATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR, SALLY JEWEL, in her official capacity as SECRETARY OF THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, JONATHAN B. JARVIS, in his official capacity as DIRECTOR OF THE NATIONAL PARK SERVICE, and TOM O. CLARK, in his official capacity as PARK SUPERINTENDENT, CANYON DE CHELLY NATIONAL MONUMENT, Defendants-Appellees OPENING BRIEF OF PLAINTIFF-APPELLANT NAVAJO NATION NAVAJO NATION DEPARTMENT FRYE LAW FIRM, P.C. OF JUSTICE Paul E. Frye Harrison Tsosie, Attorney General William Gregory Kelly Paul Spruhan, Assistant Attorney General 10400 Academy Rd. NE P.O. Drawer 2010 Suite 310 Window Rock, AZ 86515 Albuquerque, NM 87111 928-871-6343 505-296-9400 Attorneys for Navajo Nation

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 2 of 73 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. III. THE TREATIES, STATUTES, REGULATIONS, AND AGREEMENTS MUST ALL BE CONSTRUED GENEROUSLY IN FAVOR OF THE NAVAJO NATION....1 6 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.............. 1 8 A. ARPA and NAGPRA State the Same Federal Rule that Archaeological Resources Removed from Tribal Lands Are Owned and Controlled by the Tribal Landowner............... 1 8 1. Ownership and Control of Archaeological Resources Removed from Tribal Lands Before November 17, 1990 Are Determined Pursuant to ARPA.................... 18 ii

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 3 of 73 2. NAGPRA Would Determine Ownership and Control of Only Certain Archaeological Resources Removed from Tribal Lands after November 16, 1990, but It Nonetheless Confirms the Nation s Ownership and Control of These Resources.....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... 2 8 1. The Nation Holds Treaty Title to the Monument Lands, Including the Archaeological Resources, Protected by the Constitution....28 2. The Monument Act Confirmed the Nation s Treaty Rights and Conferred No Legal Interest to NPS Sufficient to Apply NAGPRA....29 3. Lacking Both a Legal Interest in the Nation s Archaeological Resources 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 Process to the Resources Is Final Agency Action Under the APA........ 3 6 D. Any Requirement for Final Agency Action Under the APA Is Also Satisfied by the Unlawful Withholding of Agency Action Under ARPA....4 0 iii

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 4 of 73 IV. THE DISTRICT COURT IMPROPERLY DISMISSED OR IGNORED THE NATION S CONSTITUTIONAL AND TRUST CLAIMS FOR WHICH SOVEREIGN IMMUNITY HAS BEEN WAIVED.......... 4 3 A. Because NPS Admits That It Has Property Taken From Canyon de Chelly In Its Physical Custody, Refused to Return It to the Nation, and Insists on Applying NAGPRA to Dispose of It, the Nation Pled a Cognizable Constitutional Claim............... 4 3 1. The Nation Has a Protected Property Interest in the Archaeological Resources....4 3 2. The District Court Improperly Adopted, Rather than Avoided, a Construction of the Monument Act that Raises Serious Constitutional Issues....4 6 3. 5 U.S.C. 702 Waives the Government s Sovereign Immunity for the Nation s Non-APA Claims, Including its Constitutional Claim, Trust Claim, and Claims Under Other Federal Statutes........................ 48 B. The APA Also Waives Federal Sovereign Immunity for the Nation s Trust Claim, and the District Court Erroneously Dismissed this Claim....5 5 CONCLUSION...5 8 iv

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 5 of 73 I. CASES TABLE OF AUTHORITIES Andriasian v. I.N.S., 180 F.3d 1033 (9th Cir. 1999)...................... 2 7 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).................. 5 4 Artichoke Joe s Calif. Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003), cert. denied, 543 U.S. 815 (2004)...1 6 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)....5 4 Bankamerica Corp. v. United States, 462 U.S. 122 (1983)................. 3 0 Bennett County v. United States, 394 F.2d 8 (8th Cir. 1968)................ 2 0 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)...................... 5 2 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)........... 5 7 v

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 6 of 73 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)...5 2 Cree v. Flores, 157 F.3d 762 (9th Cir. 1998)....2 9 Delano Farms Co. v. California Table Grape Comm n, 655 F.3d 1337 (Fed. Cir. 2011)....5 2 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)........ 2 7 Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922 (9th Cir. 1999)...3 9 Education Assistance Corp. v. Cavazos, 902 F.2d 617 (8th Cir.), cert. denied, 498 U.S. 896 (1990)...4 5 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)............... 4 8 Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006), cert. denied, 552 U.S. 824 (2007)...5 0 Hale v. Norton, 476 F.3d 694 (9th Cir.), cert. denied, 552 U.S. 1076 (2007)... 3 8 Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615 (6th Cir. 2010)........... 5 2 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)....................... 5 0 Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976)......................... 1 7 Hodel v. Irving, 481 U.S. 704 (1987)....5 4 vi

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 7 of 73 HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000)........................ 1 7 Hui v. Castaneda, 559 U.S. 799 (2010)...2 3 Illinois v. City of Milwaukee, 406 U.S. 91 (1972)...5 7 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)...1 7 Kickapoo Traditional Tribe of Texas v. Chacon, 46 F.Supp. 2d 644 (W.D. Tex. 1999)...2 3 Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012).................. 4 1 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)... 5 1 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)................... 1 6 Montana v. Blackfeet Tribe, 471 U.S. 759 (1985)...1 6 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).... 5 2 National Treas. Employees U. v. FLRA, 112 F.3d 402 (9th Cir. 1997)........ 4 9 Native Village of Kivalina v. Exxon Mobil Corp., 696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S.Ct. 2390 (2013)................... 1 6 Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)........ 40, 43 vii

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 8 of 73 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)....3 6 Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996)....1 7 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).... 5 6 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)........... 3 5 Reece v. United States, 455 F.2d 240 (9th Cir. 1972)..................... 4 9 Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008)....................... 2 7 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)...4 5 Rust v. Sullivan, 500 U.S. 173 (1991)...4 8 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)......... 4 3 Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132 (5th Cir. 1980), rev d, 456 U.S. 728 (1982)...5 2 Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998).................... 4 4 viii

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 9 of 73 Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959)............ 5 4 Staacke v. United States Secretary of Labor, 841 F.2d 278 (9th Cir. 1988).... 5 4 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)............. 1 8 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).................... 5 2 Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006)......................... 5 2 Tulee v. Washington, 315 U.S. 681 (1942)...2 9 United States v. Creek Nation, 295 U.S. 103 (1935)...4 6 United States v. Dion, 476 U.S. 734 (1986)...1 8 United States v. General Motors Corp., 323 U.S. 373 (1945)............... 4 4 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).......... 1 6 United States v. Washington, 641 F.2d 1368 (9th Cir. 1981), cert. denied, 454 U.S. 1143 (1982)...1 8 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)............... 5 1 ix

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 10 of 73 Varity Corp. v. Howe, 516 U.S. 489 (1996)....5 6 Watt v. Alaska, 451 U.S. 259 (1981)...2 3 Williams v. Taylor, 529 U.S. 420 (2000)...3 0 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....4 0 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)....4 0 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...1 8 16 U.S.C. 470aa-mm....1 16 U.S.C. 470bb...20, 41 x

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 11 of 73 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 xi

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

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 13 of 73 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)....4 6 S. Rep. No. 71-1397 (1931)...1 1 34 U.S. Op. Atty. Gen. 181 (1924)...2 0 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...3 4 National Park Service: National NAGPRA Program Glossary.............. 3 5 Department of Defense: Trust Responsibility and Consultation Matrix....... 2 5 xiii

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 14 of 73 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 xiv

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 15 of 73 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

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 16 of 73 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 2

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 17 of 73 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 1 as Secretary of the Interior, NPS and its Director Jonathan B. Jarvis, and 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 1 Secretary Sally Jewell is substituted for former Secretary Salazar pursuant to Fed. R. App. P. 43(c)(2). 3

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 18 of 73 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 4

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 19 of 73 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 5

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 20 of 73 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, treatybased property right to all of Canyon de Chelly such that no other tribe could have any right to that property. 6

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 21 of 73 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 2 United States is founded on the 1850 and 1868 treaties. The 1850 Treaty placed the 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 2 United States v. Wheeler, 435 U.S. 313, 324 n.20 (1978). 7

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 22 of 73 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 8

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 23 of 73 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, 3 NNRE 18. The federal Commissioner of the Navajo Tribe, H. J. Hagerman, assured the Council that The title would not be taken away in any way from the Indians or their treaty rights interfered with, but it would be merely set aside and protected as a monument national park so that the ruins would be preserved and outsiders would be prevented from going in and looting the ruins. Add. at 71 (emphasis added). On July 8, 1930, Hagerman read sections 2 and 3 of the draft Monument Act 3 Excerpts from the Monument History are reproduced at Add. 65-80, which 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 and appropriate under Fed. R. Evid. 201(d). See, e.g., Aramark Facility Serv. v. Service Employees Int l U., 530 F.3d 817, 826 & n.4 (9th Cir. 2008). 9

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 24 of 73 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 the administration of the area so far as it applies to the care, maintenance, preservation and restoration of the prehistoric ruins, or other features of scientific or historical interest within the area, and shall have the right to construct upon the lands such roads, trails, or other structures or improvements as may be necessary in connection with the administration and protection of the monument, and also the right to provide facilities of any nature whatsoever required for the care and accommodation 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 10

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 25 of 73 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 11

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 26 of 73 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 12

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 27 of 73 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 13

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 28 of 73 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 14

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 29 of 73 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. 15

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 30 of 73 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 AGREEMENTS MUST ALL BE CONSTRUED GENEROUSLY IN FAVOR OF THE NAVAJO 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 16

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 31 of 73 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 17

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 32 of 73 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 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. A. ARPA and NAGPRA State the Same Federal Rule that Archaeological Resources Removed from Tribal Lands Are Owned and Controlled by the Tribal Landowner. 1. Ownership and Control of Archaeological Resources Removed from Tribal Lands Before November 17, 1990 Are Determined Pursuant 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 18

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 33 of 73 The Secretary of the Interior may promulgate regulations providing for (1) the exchange, where appropriate, between suitable universities, museums, or other scientific or educational institutions, of archaeological resources removed from public lands and Indian lands pursuant to this chapter, and (2) the ultimate disposition of such resources and other resources removed pursuant to the Act of June 27, 1960 (16 U.S.C. 469 469c) [16 U.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 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. Following promulgation of regulations under this section, notwithstanding any other provision of law, such regulations shall govern the disposition of archaeological resources removed 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 19

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 34 of 73 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 Only Certain Archaeological Resources Removed from Tribal Lands after November 16, 1990, but It Nonetheless Confirms the Nation 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 ), 4 unassociated funerary objects, sacred objects, and cultural patrimony, where such archaeological resources were removed from tribal or federal lands after the enactment of NAGPRA in 1990: 4 All of these categories of cultural items are also covered by the term archaeological resources under ARPA, if they are at least 100 years old. See 16 U.S.C. 470bb(1); 43 C.F.R. 7.3(a). 20

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 35 of 73 The ownership or control of Native American cultural items which are excavated 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 associated funerary 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, and objects of cultural patrimony (A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered; (B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or (C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered on Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe (1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or (2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the Indian tribe that has the strongest demonstrated relationship, if upon notice, 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 21

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 36 of 73 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 Should Give 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 22

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 37 of 73 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 23

Case: 13-15710, 08/20/2013, ID: 8749242, DktEntry: 12-1, Page 38 of 73 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 5 drafters stated that [a]rchaeological resources excavated or removed from Indian 5 Section 10(a) of ARPA, 16 U.S.C. 470ii, requires that the Secretaries of the Interior, Agriculture, and Defense, and the Chairman of the Board of the Tennessee 24