indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Kill The Tobacco Master Settlement Agreement
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:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Agency weighs uranium mine near sacred site (9/30)
Jim Abourezk: South Dakota tribes can put Rick Weiland in office (9/30)
Cherokee chief participated in live pigeon shoot for Sen. Inhofe (9/30)
Navajo vice president returns home after near fatal spider bite (9/30)
North Dakota tribe sees big problems as energy industry grows (9/30)
Andre Cramblit: Another year brings challenges for our people (9/30)
Jack Duran: State's 'shocking' attack on Big Lagoon Rancheria (9/30)
Navajo Nation Council to select a new leader after resignation (9/30)
Editorial: Long delayed trust fund settlement for Navajo Nation (9/30)
Keepseagle plaintiffs oppose use of $380M to create foundation (9/30)
Opinion: Working with New Mexico tribes to protect sacred sites (9/30)
Pueblo man chosen as chair of VA minority advisory committee (9/30)
Woman sues over fall at Fallon Paiute Shoshone Tribe business (9/30)
Seminole Tribe makes another attempt to join banking business (9/30)
Mohegan Tribe purchases more wood pellet production facilities (9/30)
Ponca Tribe takes down old headquarters and readies new home (9/30)
Native Mob gang leader sentenced to 43 years in federal prison (9/30)
Three indicted for murder of man from Northern Arapaho Tribe (9/30)
Rivals funded DC trips to oppose Tohono O'odham Nation casino (9/30)
American Gaming Association includes tribes in economic report (9/30)
Editorial: Vote yes to support North Fork Rancheria gaming deal (9/30)
Editorial: Florida shouldn't take a gamble with casino expansion (9/30)
Tim Giago: All Indian people ask is for America to honor treaties (9/29)
Native Sun News: Tribes take on IRS and win battle over taxation (9/29)
Mark Trahant: Indian vote could bring a surprise in South Dakota (9/29)
Tribal General Welfare Exclusion Act signed into law by Obama (9/29)
Obama signs law for settlement with Pyramid Lake Paiute Tribe (9/29)
Chelsey Luger and Gyasi Ross: Transforming the spirit of suicide (9/29)
Migizi Pensoneau: Behind the scenes at a Washington NFL game (9/29)
Donna Ennis: Ancestor starting asking about trust fund in 1900s (9/29)
Steven Newcomb: Indigenous conference yields power to states (9/29)
Kyle Mays: Rejecting narrowminded views of indigenous studies (9/29)
Brian Pierson: Tribal preference ruling strengthens sovereignty (9/29)
Thousands missing out on share of Cobell settlement payments (9/29)
Navajo presidential candidate in doubt over fluency in language (9/29)
Oneida Nation repeats history with women in top leadership jobs (9/29)
Al Jazeera: Tribes working together to restore bison to their land (9/29)
Indian Time: Oklahoma Indian museum expected to be big draw (9/29)
Column: Washington team should be worried about FCC petition (9/29)
Opinion: NMAI exhibit finally puts federal-tribal dealings to light (9/29)
Gun Lake Tribe hails new law that protects casino from litigation (9/29)
Former mayor remains hopeful on Los Coyotes Band casino bid (9/29)
Chumash Tribe awards $112M contract as part of casino project (9/29)
Documents show Seminole Tribe was close to new gaming deal (9/29)
Column: Taking a gamble in Louisiana - What's legal and illegal? (9/29)
Native Sun News: Tex Hall ousted in North Dakota tribal primary (9/26)
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.