indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Native American Bank - Native people investing in Native communities
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Court limits lawsuits under historic preservation act
Wednesday, August 10, 2005

A federal appeals court on Tuesday curtailed the ability of tribes to bring lawsuits aimed at protecting cultural, historic and sacred sites.

In a precedent-setting decision, the 9th Circuit Court of Appeals held that the National Historic Preservation Act doesn't authorize lawsuits against the United States. Dismissing a case brought by the San Carlos Apache Tribe of Arizona, a three-judge panel said that the law lacks a "private" right of action.

The judges said the tribe could have brought a claim under other federal statutes that authorize lawsuits. But in doing so, they created a conflict between the 9th Circuit and at least three other circuits over the interpretation of NHPA.

The 3rd Circuit, the 5th Circuit and the 8th Circuit have previously ruled that the act's provisions on attorney's fees demonstrate the intent of Congress to create a private right of action. The 9th Circuit, however, noted the lack of "explicit language" to authorize lawsuits under NHPA itself.

The decision is important because tribes and Indian organizations have cited NHPA in a number of court cases. In South Dakota, which is part of the 8th Circuit, the Yankton Sioux Tribe used the law to protect a burial ground that was being destroyed by the U.S. Army Corps of Engineers. Other tribes have gone to court to enforce the consultation provisions of the act.

But Indian advocates have long complained that the NHPA, along with other statutes, lacks teeth. They say federal agencies often ignore mandates to work with tribes and protect important sites because officials know they can't be forced into court.

"We need a way to get into court if only to avoid going there," activist Suzan Shown Harjo, the president of the Morning Star Institute, said in Senate testimony in June 2003. "Without a cause of action to protect sacred places we have no way of getting around a negotiating table. We don't have any leverage."

In the 9th Circuit case, the San Carlos Apache Tribe sued the Interior Department over the operation of the San Carlos Reservoir, which is located entirely within reservation boundaries but serves other tribes. Citing drought conditions on the reservation, the tribe wants the levels maintained in order to protect the environment. The reservoir is located above the tribe's old burial grounds and the former camp of Geronimo.

A federal judge rejected the tribe's claims under the Endangered Species Act and the Native American Graves Protection and Repatriation Act. The only issue remaining was whether the tribe could bring a lawsuit to enforce Section 106 of the NHPA.

According to the Advisory Council on Historic Preservation, the section requires federal agencies to consider historic preservation values when planning their activities. An agency must identify affected historic properties, evaluate the proposed action's effects, and then explore ways to avoid or mitigate those effects. The work must occur in consultation with tribes, states, Native Hawaiians and other interested parties.

The 9th Circuit decision doesn't change the government's mandate but makes clear that tribes and other parties have to find another source of law in order to bring lawsuits against federal agencies. For example, the Administrative Procedures Act could be used once the agency makes a final decision affecting an important site.

The 9th Circuit covers tribes in seven western states, tribes in Alaska and Native Hawaiians in Hawaii. By far, its hears the largest number of Indian law cases, many of which are appealed to the U.S. Supreme Court.

In a separate case, the 9th Circuit held that sacred sites can be protected under government policies. "Native American sacred sites of historical value are entitled to the same protection as the many Judeo-Christian religious sites," the court wrote in a September 2004 decision. The case was appealed to the Supreme Court but the justices declined to hear it in April 2005.

Get the Decision:
San Carlos Apache Tribe v. US (August 9, 2005)

Relevant Links:
National Association of Tribal Historic Preservation Officers - http://www.nathpo.org
Advisory Council on Historic Preservation - http://www.achp.gov

Related Stories:
Supreme Court Roundup: Indian law cases rejected (04/19)
Appeals court says sacred sites worthy of protection (09/07)
Climbing group backs voluntary ban at sacred rock (07/06)
Group's challenge to sacred site policy rejected (03/31)
Plans for shooting range near sacred site scrapped (1/12)
Protections for sacred sites called inadequate (06/19)
Court won't halt transfer of burial sites to state (06/18)
Federal funds used for shooting range near sacred site (03/25)
Appeals court debates S.D. land transfer (03/18)
Judge: S.D. tribe not consulted (7/1)
Norton aides silent on sacred sites (7/18)
Judge halts work at S.D. site (6/12)
Group bolsters argument with Indian law (06/12)
Input sought into sacred sites (6/5)
Congress considering sacred sites (5/21)
Supreme Court rejects property-rights claim (04/24)
Victory on sacred site case (04/19)
Tribes push action on sacred sites (3/21)
Tribe prevails on sacred site case (3/19)
Norton denies politics played role in drilling (6/7)
Norton hit on exploration of sacred site (6/6)
Myers reversing sacred site opinion (10/25)
Bush nominee has no 'agenda' on Clinton decisions (6/21)
Babbitt denies Calif. gold mine (1/19)
BLM recommends mine rejection (11/10)

Copyright 2000-2005 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Indian Country rallies to return Jim Thorpe back home to Oklahoma (7/6)
Jodi Gillette joins board of directors for Notah Begay III Foundation (7/6)
President Obama signs bill to help Miami Nation revoke old charter (7/6)
House Natural Resources Committee weighs tribal bills at markup (7/6)
Witnesses: Senate Indian Affairs Committee trust reform hearing (7/6)
Conservative group to file class action lawsuit to challenge ICWA (7/6)
Native Sun News: Oglala leader links deaths to domestic violence (7/6)
Lakota Country Times: Native youth work on drama and filmmaking (7/6)
James Giago Davies: The things that really matter to Lakota people (7/6)
Alray Nelson: Navajo Nation must move toward marriage equality (7/6)
Terese Mailhot: Get your Disney princesses out of Indian Country (7/6)
Alex Jacobs: Genocide and slavery aren't taught in our classrooms (7/6)
Gregory Smithers: Cherokee Nation gave up Confederate imagery (7/6)
Duane Champagne: Tribes willing to adapt without losing identity (7/6)
Washington fights tribal treaty rights decision before 9th Circuit (7/6)
Bobcat wearing necklace found at Native burial mound in Illinois (7/6)
Editorial: Osage Nation loses out with energy development rules (7/6)
Editorial: Connecticut wins with BIA's federal recognition reforms (7/6)
Editorial: A woman belongs on $20 bill instead of Andrew Jackson (7/6)
Non-Indian man plans appeal in loss of Gun Lake Tribe casino case (7/6)
Aquinnah Wampanoag Tribe told to stop working on gaming facility (7/6)
Bishop Paiute Tribe seeks loan for $30M casino expansion project (7/6)
Seminole Tribe waits on response in Class III casino compact talks (7/6)
Rep. Joe Barton of Texas plays poker at tribal casino in Oklahoma (7/6)
Law Article: Saginaw Chippewa Tribe loses ruling in NLRB dispute (7/6)
Native Sun News: Deadly storm hits Crow Creek Sioux Reservation (7/3)
Lakota Country Times: Rosebud youth hold suicide awareness walk (7/3)
Delphine Red Shirt: Speak the Lakota language to carry on culture (7/3)
Senate Indian Affairs Committee schedules trust reform hearing (7/3)
Chumash Tribe wins dismissal of suit over status of reservation (7/3)
Four groups in Oklahoma seeking federal recognition through BIA (7/3)
Little Shell Chippewa Tribe welcomes federal recognition reforms (7/3)
Leader of Duwamish Tribe calls denial of recognition 'devastating' (7/3)
Editorial: Other tribes in Virginia deserve federal recognition too (7/3)
Ojibwe hockey star excited for transfer to team in nation's capital (7/3)
Jamestown S'Klallam Tribe wants sacred rock on national register (7/3)
Rosebud Sioux Tribe won't give up on wind energy despite delays (7/3)
Catawba Nation fought against British during Revolutionary War (7/3)
Kootenai Tribe of Idaho revives powwow after 15-year absence (7/3)
Taos Pueblo man sentenced to seven years in prison for stabbing (7/3)
Disputed leader of Chukchansi Tribe sentenced for clash at casino (7/3)
Aquinnah Wampanoag Tribe starts work on Class II gaming facility (7/3)
Tohono O'odham Nation faces state in court in new casino lawsuit (7/3)
Cherokee Nation to open hotel at $80M casino near Arkansas in fall (7/3)
Brian Pierson: Tribal labor sovereignty could land in Supreme Court (7/3)
Pierre Bergeron: Judges split on federal labor law at tribal casinos (7/3)
Native Sun News: Lakota riders complete journey to Little Bighorn (7/2)
Lakota Country Times: Newspaper takes home top honors at NAJA (7/2)
Brandon Ecoffey: Delivering stories that matter to Indian Country (7/2)
Ivan Star: Creating a culturally appropriate economy at Pine Ridge (7/2)
Elizabeth Hawksworth: Being patriotic and being Native in Canada (7/2)
Micah A: Blood quantum does not make me any less of an Indian (7/2)
David Shorter: Learning not to speak on behalf of Native peoples (7/2)
Marc Simmons: Legend of Catholic priest saved by grateful tribe (7/2)
Sen. McCain deemed responsible for land swap at sacred Oak Flat (7/2)
A Tribe Called Red releases free remix of Buffy Sainte-Marie track (7/2)
Pamunkey Tribe wins final federal recognition decision from BIA (7/2)
Duwamish Tribe rejected for federal recognition for a third time (7/2)
BIA accused of blocking road access on New Mexico reservation (7/2)
Chippewa Cree Tribe elects Ken St. Marks as chair for fourth time (7/2)
Mississippi Choctaw leader comes out on top in unofficial results (7/2)
Bois Forte Band grows economy with second Tim Hortons Cafe (7/2)
Chickasaw Nation hails selection of permanent Indian law chair (7/2)
Editorial: Gila River Indian Community to blame for highway path (7/2)
Cow Creek Band continues to oppose new Coquille Tribe casino (7/2)
Confederated Salish and Kootenai Tribes renovate casino resort (7/2)
Four more tribes in New Mexico enter Class III gaming compact (7/2)
Editorial: Pojoaque Pueblo gets pass on illegal gaming operation (7/2)
Save Oak Flat caravan plans journey to DC to protect sacred site (7/1)
Court reluctantly backs NLRB in Saginaw Chippewa Tribe dispute (7/1)
Native Sun News: Opposition grows to delisting of grizzly bears (7/1)
Lakota Country Times: Reservation counties rank as deadliest (7/1)
Steve Russell: Professor outed as Cherokee fraud once again (7/1)
Harlan McKosato: Indian people survive despite mistreatment (7/1)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.