Thursday, November 14, 2019

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Abstract

Excerpted From: Adam Gerken, Examining the Administrative Unworkability of Final Agency Action Doctrine as Applied to the Native American Graves Protection and Repatriation Act, 8 Michigan Journal of Environmental & Administrative Law 477 (Spring, 2019) (Student Note) (151 Footnotes) (Full Document)

 

AdamGerkenThe Native American Graves Protection and Repatriation Act (“NAGPRA [Native American Graves Protection and Repatriation Act]”) is a federal statute that regulates Native American remains and sacred objects on federal land and under the control of museums. In Navajo Nation, the Ninth Circuit Court of Appeals held that the application of NAGPRA [Native American Graves Protection and Repatriation Act] to human remains and artifacts found at Canyon de Chelly National Park was a final agency account reviewable by a court under the Administrative Procedure Act (“APA”). Normally, remains and sacred objects found on federal land are repatriated to their tribe of origin, meaning that they are inventoried, matched to a specific tribe, and physically returned to that tribe. Even though the National Park Service's application of NAGPRA [Native American Graves Protection and Repatriation Act] to the Canyon de Chelly remains and artifacts marked the start of a multi-stage inventory process - a process which would ultimately result in a separate determination of cultural affiliation by the National Park Service - the application of NAGPRA [Native American Graves Protection and Repatriation Act] in and of itself constituted a final agency action to the Ninth Circuit. The court reasoned that the application of NAGPRA [Native American Graves Protection and Repatriation Act] marked the end of the agency's decision-making as to the legal issue in question and implicated the religious rights of the Navajo Nation. The court's holding that the application of NAGPRA [Native American Graves Protection and Repatriation Act] in and of itself constituted a final agency action highlighted the unworkability of the underlying legal doctrine applied in the case. This conclusion allows tribes to present legal claims requiring repatriation of remains and artifacts without a definitive determination of tribal association under NAGPRA [Native American Graves Protection and Repatriation Act].

In Section I of this Note, I analyze the APA's final agency action requirement and NAGPRA [Native American Graves Protection and Repatriation Act]'s inventory process requirement, the contributory legal doctrines, and the unique ways in which these two statutes interact. I illustrate how final agency action doctrine necessarily views the rights implicated by agency action to be property rights, not cultural heritage rights.

In Section II, I use Navajo Nation v. U.S. Department of the Interior as a case-study highlighting the theoretical problems underlying the application of final agency action doctrine to cases implicating NAGPRA [Native American Graves Protection and Repatriation Act]. The case presents the following key inconsistency: the decision to apply a law which begins process that will result in a final agency action is, in and of itself, its own final agency action. When combined with the unique cultural heritage rights implicated by NAGPRA [Native American Graves Protection and Repatriation Act] (which implicate the rights of the deceased Native Americans at issue and may prevent the remains from being returned to their proper culture) this result contravenes the purpose of the agency action in the first place. The decision in Navajo Nation chooses to value property ownership over the protection of the cultural patrimony associated with such remains.

In Part B of Section II, I identify some of the criticism of the doctrine as illustrated in its confusing application and result in Navajo Nation. First, I discuss some of the tension between Navajo Nation and existing jurisprudence concerning the final agency action requirement of the APA. Second, I discuss how final agency action doctrine undermines the purposes of the underlying statutory scheme in respect to the APA, NAGPRA [Native American Graves Protection and Repatriation Act], and the treaties and statutes resulting in the creation of Canyon de Chelly.

In Part B of Section II, I argue that the fundamental problem with this final agency action problem in the context of NAGPRA [Native American Graves Protection and Repatriation Act] and its associated cultural heritage rights is that final agency action doctrine has traditionally been implemented to protect private property rights. Property rights are crucially different in application when compared to cultural heritage rights. Since cultural heritage rights implicated by statutes such as NAGPRA [Native American Graves Protection and Repatriation Act] are intrinsically different than standard private or public property rights on which final agency action doctrine is based, the law should develop a system sensitive to the unique circumstances of cultural heritage rights.

In Section III, I consider potential solutions to this problem by proposing either reframing the judicial doctrine or pursuing new legislation. Regardless of how this problem is solved, I argue that a separate set of rules should be developed for final agency action cases that implicate cultural heritage rights.

[...]

Navajo Nation was not a poorly-reasoned, wrongly-decided case. The resulting doctrine, however, resulted in the unworkability of the sector of the administrative state that manages cultural heritage. The court was required to apply the complex doctrine of final agency action to the context of NAGPRA [Native American Graves Protection and Repatriation Act] and gave an opinion that highlighted the problems currently present in the law.

In the context of NAGPRA [Native American Graves Protection and Repatriation Act], final agency action doctrine created a result that seems to conflict with itself. Although some case law would implicate a question as to whether the result is within the purpose of the doctrine, on a basic level, the result is within the guidelines set by law. It does, however, appear to allow for the circumvention of an administrative process, which final agency action doctrine was designed to prevent. Final agency action doctrine further contravenes the purposes of NAGPRA [Native American Graves Protection and Repatriation Act], creating an unworkable inventory process and ignoring the rights of smaller and less powerful Native American tribes.

Considering these doctrinal contradictions, it is essential that courts or the legislature work to develop a line of law that manages the unique circumstances of cultural heritage laws like NAGPRA [Native American Graves Protection and Repatriation Act], so that the administrative state can function. An effective administrative state allows the federal government to actively work with Native American tribes to properly repatriate sacred objects. If such workable procedures exist, then NAGPRA [Native American Graves Protection and Repatriation Act]'s goals can best be met.


J.D. Candidate 2019, University of Michigan Law School.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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