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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

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