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
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:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Charles Kader: Haudenosaunee territory will always be Indian land (2/9)
Girls basketball team proudly wears Navajo hairstyle during game (2/8)
National Indian Gaming Commission slated to get a third member (2/8)
Senate committee to host roundtable on Tribal Law and Order Act (2/8)
Senate Indian Affairs Committee postpones field hearing into EPA (2/8)
Senate designates National Tribal Colleges and Universities Week (2/8)
Bill John Baker: Cherokee Nation invests in our people's wellbeing (2/8)
Kevin Washburn: Republicans punish tribe in public lands measure (2/8)
Harold Monteau: Democrats stack the deck for only one candidate (2/8)
Cutcha Risling Baldy: Don't let Leonard Peltier die in prison system (2/8)
Robert Jumper: Keep Eastern Cherokee council meetings on record (2/8)
Brian Pierson: Menominee Nation loses decision at Supreme Court (2/8)
Probe continues into unsolved homicide of 11-year-old Native girl (2/8)
Burns Paiute Tribe might seek to reopen judgment for stolen lands (2/8)
Shinnecock Nation approves plans to join medical marijuana field (2/8)
Teams protest corporate sponsor of Native basketball tournament (2/8)
Rosebud Sioux Tribe faces obstacles with repatriation of students (2/8)
Wallace Coffey resigns as chair of Comanche Nation after 25 years (2/8)
Broker accused of lying to tribal client about $190M in investments (2/8)
Seminole Tribe showcases long-lost declaration of independence (2/8)
Pope Francis to celebrate mass at Indian church for trip to Mexico (2/8)
California communities go without as casino revenue fund dries up (2/8)
Non-Indian firm looking to block Mashpee Wampanoag Tribe casino (2/8)
Umatilla Tribes raise gambling age as sales of liquor start at casino (2/8)
Apology offered to girls who were forced to change Native hairstyle (2/5)
Mark Trahant: Bernie Sanders campaign starts Indian policy group (2/5)
Charles Trimble: Taking responsibility for upkeep of our cemeteries (2/5)
Mary Annette Pember: Memorial to Indian genocide eyed in Russia (2/5)
Terese Marie Mailhot: I guess I'm just one of those 'crazy' Indians (2/5)
Judge weighs compromise for $380M in leftover Keepseagle funds (2/5)
Blackfeet Nation welcomes movement on water rights settlement (2/5)
Yakama Nation wins decision on cost of cleaning up contamination (2/5)
Mashpee Wampanoag Tribe confident of casino bid despite lawsuit (2/5)
Arizona sees 6.9 percent boost in gaming contributions from tribes (2/5)
Cowlitz Tribe close to reaching agreement with city for new casino (2/5)
Schaghticoke Tribal Nation questions exclusion from casino process (2/5)
Tribal leaders question management changes at IHS in Great Plains (2/4)
IHS chief medical officer apologizes for comments about newborns (2/4)
Group sues IHS for records about water pollution on Yakama Nation (2/4)
Sen. McCain still bothered by failure to block Arizona tribe's casino (2/4)
Gun Lake Tribe announces retirement of longtime chair DK Sprague (2/4)
House Natural Resources Committee passes Indian bills at markup (2/4)
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.