PHOENIX — A federal appeals court on Wednesday gave the Navajo Nation a chance to argue that remains found by the U.S. Parks Service at Canyon de Chelly should be immediately returned to the tribe.
In a split decision, the judges said the tribe should not have to wait until the federal agency conducts an inventory of the remains.
Judge Morgan Christen, writing for the majority, said there is evidence that long-existing treaties and federal laws allow the tribe to seek immediate return.
Buit Wednesday’s ruling is not an absolute victory for the Navajo Nation. All it does is give tribal lawyers a chance to make their case to a trial judge in Phoenix.
The lawsuit involves Canyon de Chelly in northeast Arizona, a part of the reservation that the tribe agreed to allow the Park Service to manage as a national monument.
Between 1931 and 1990, the agency removed 303 sets of human remains and associated objects, virtually all of them without consent of the tribe. According to court records, those items are in a collection at the Western Archeology Conservation Center in Tucson.
A 1990 law, the Native American Graves Protection and Repatriation Act, requires federal agency that have remains to inventory them. If that process establishes a “known lineal descendant” or “cultural affiliation” with an existing tribe, then the agency must “expeditiously return” the item upon request.
Six years later the tribe asserted it owned all remains found within the national monument, objected to the inventory process and demanded their return. The Park Service refused and started the inventory process.
In 2011 the tribe sued for return of the items.
U.S. District Court Judge Paul Rosenblatt judge tossed the lawsuit, saying there was no right to sue until the inventory process was completed. But Christen said that conclusion was legally erroneous.
He said the Park Service, in deciding to follow the procedures in the 1990 law and not immediately return the items, essentially made a final decision.
And that, wrote Christen, was a final decision that was subject to resolution in federal courts.
Tribal attorneys say the creation of the national monument never gave the federal government any legal interest in the remains.
