indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Indian Law Online Master Degree
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: North Dakota takes on impacts of energy boom (1/26)
Native Sun News: Oglala Sioux man calls on US to honor its word (1/26)
GOP leader outlines agenda for Senate Indian Affairs Committee (1/26)
Witness list for Senate Indian Affairs Committee's first hearing (1/26)
Supreme Court orders another decision in Indian inmates' case (1/26)
Brandon Ecoffey: Major issues ignored in State of Indian Nations (1/26)
Steven Newcomb: Supreme Court decision influenced by religion (1/26)
Mateo Romero: Era of white American male rule coming to an end (1/26)
Prairie Band Potawatomi Nation mourns passing of Gary Mitchell (1/26)
Officer accused of using Taser on 2 boys in Alaska Native village (1/26)
Navajo Nation Council delegate does double duty as metalhead (1/26)
Editorial: Alaska tribe makes tough decision to banish bad actors (1/26)
Opinion: Wealthy tribes shouldn't follow land-into-trust process (1/26)
Obama to seek stronger protections for wildlife refuge in Alaska (1/26)
Ho-Chunk Nation remains hopeful on off-reservation casino bid (1/26)
Chukchansi Tribe comes together in hopes of reopening casino (1/26)
Bois Forte Band reports six percent drop in revenues at casino (1/26)
Washington tribes can add more machines with new casino deal (1/26)
Editorial: Battle against Poarch Creek casinos is a waste of time (1/26)
Native Sun News: Montana basketball legend gives back to youth (1/23)
Mark Trahant: Building the new digital economy in Indian Country (1/23)
James Giago Davies: Washington team insults the first Americans (1/23)
Gyasi Ross: Indian Country can't get enough of Seattle Seahawks (1/23)
Jay Daniels: A tribute to Crow basketball legend Elvis D. Old Bull (1/23)
Richard Thornton: People of One Fire exposing forgotten history (1/23)
NARF: Supreme Court decision impacts rights of Indian inmates (1/23)
Oglala Sioux medicine man dies awaiting trial in sex abuse case (1/23)
No charges filed for deaths of two people on Barona Reservation (1/23)
IRS placed $664K in tax liens on leader of Lower Brule Sioux Tribe (1/23)
Yellowstone National Park starts transferring bison for slaughter (1/23)
Fire in 1865 destroyed Smithsonian collection of Indian portraits (1/23)
Turtle Talk: Gaming compact cases are extremely difficult to win (1/23)
Governor rejects Menominee Nation off-reservation gaming plan (1/23)
Otoe-Missouria Tribe reaches agreement with city for new casino (1/23)
Chehalis Tribe to start work on $40M expansion of gaming facility (1/23)
Idaho lawmakers question gaming machines at non-Indian tracks (1/23)
State of Indian Nations as delivered by NCAI President Cladoosby (1/22)
Sen. Barrasso delivers response to NCAI's State of Indian Nations (1/22)
Native Sun News: Tribes step up with donations for cultural center (1/22)
Ivan Star: Indian Country must put more effort in public relations (1/22)
Steven Newcomb: Indian policy is unmistakenly linked to religion (1/22)
Harlan McKosato: Apache woman develops 'indispensible' guide (1/22)
Tristan Ahtone: Former Native gang member tries to start anew (1/22)
Q&A with Chemehuevi artist Cara Romero on 'Last Indian Market' (1/22)
Sainthood for founder of brutal California Indian mission system (1/22)
Native mayor promises to change city's reputation as most racist (1/22)
Deadline passes to appeal Fond du Lac Band land-into-trust case (1/22)
City rejects Citizen Potawatomi Nation land detachment petition (1/22)
Oklahoma lawmakers debate future of unfinished Indian museum (1/22)
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.