Examining the Administrative Unworkability of Final Agency Action Doctrine as Applied to the Native American Graves Protection and Repatriation Act

Authors

Adam Gerken, University of Michigan Law School

Abstract

The application of the Administrative Procedure Act (“APA”) to the Native American Graves Protection and Repatriation Act (“NAGPRA”) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is simultaneously arbitrary and unclear. In the Ninth Circuit’s holding in Navajo Nation v. U.S. Department of the Interior, the Court applied final agency action doctrine in a manner that was legally correct but administratively unworkable. The Court’s opinion contravenes both the reasoning behind the APA final agency action doctrine and the purposes of both NAGPRA and the APA. The holding further allows for a finding of a final agency action despite the fact that the application of NAGPRA is the beginning of a process that will result in its own final agency action – the determination of which tribe owns the remains and artifacts. Such a result ignores sensitive issues of cultural patrimony (the identification of cultural heritage as to specific sets of remains or sacred object) associated with the NAGPRA inventory process, which requires that Native American remains and sacred objects found on federal land be inventoried by the federal agency that manages that land.

The unworkability and legal incoherence of the Ninth Circuit’s decision in Navajo Nation stems from an underlying final agency action doctrine developed to protect property rights that fails to properly consider the unique context of cultural heritage rights implicated by statutes such as NAGPRA. These rights involve the recognition that human remains and ceremonial objects belong to a specific culture. The application of final agency action doctrine invites legal claims before anyone can adequately determine what culture the remains and artifacts belong to. Because of this, the courts or Congress must develop an alternative set of rules to be used when dealing with a final agency action that implicates the cultural heritage rights associated with ancient remains and sacred objects. Such an action would account for the unique nature of the rights in question. Doing so would make administrative agencies better equipped to provide inclusive protections to minority cultures in the performance of their duties.

Recommended Citation

Adam Gerken, Examining the Administrative Unworkability of Final Agency Action Doctrine as Applied to the Native American Graves Protection and Repatriation Act, 8 Mich. J. Env't. & Admin. L. 477 (2019).
Available at: https://repository.law.umich.edu/mjeal/vol8/iss2/5