State Capitol News
Tue December 20, 2011
Navajo Sue Park Service to Return Remains
Saying what was taken from its lands belongs to it, the nation's largest Native American tribe wants to force the National Park Service to return and rebury the human remains exhumed in prior years from Canyon de Chelly.
In a lawsuit filed last week in federal court, attorneys for the tribe said the 1933 law establishing the national monument gave the federal government the power to administer the lands in northeast Arizona. And they said the tribe did not give up its title to the land.
"By agreeing to the establishment of the Canyon de Chelly National Monument, the Navajo Nation Council would never have agreed, and did not agree, that the National Park Service, or any other party, was thereby allowed to exhume and carry off human remains and sacred and other cultural objects located on or in the monument,'' attorneys for the tribe said.
Tom Clark, the monument's superintendent, said efforts are being made to give back the items taken over the years, now located in the Western Archeological and Conservation Center in Tucson.
But Clark said it's not as simple as the tribe makes it seem.
He said federal laws require the Park Service to first figure out the "cultural affinity'' of the remains and other objects. At that point, Clark said, each tribe gets to make a decision of what it wants done.
"It's a conflict between what's written in the Native American Graves Protection and Repatriation Act and property rights laws,'' Clark said. "The Navajo Nation is saying because the remains came from tribal lands, they're tribal property.''
But Clark said that, as far as the Park Service is concerned, it has to comply with the repatriation act and complete the process of figuring out who is entitled to the remains.
According to the lawsuit, there are 303 remains and objects at issue. Tribal attorneys say it appears the Park Service intends to give some of those to Hopi, Zuni or Navajo tribes, "or potentially some other tribe, even where all of the remains and objects were removed from original treaty lands of the Navajo Nation and are the property of the Navajo Nation.''
The issues may be even more complex than that.
Some of it involves timing.
According to the tribe's lawsuit, all of the items were taken before the repatriation act was approved in 1990. What that means, the attorneys contend, is that federal agencies cannot go through the repatriation process unless they show they have "lawful possession and control'' of the items.
That is not the case here, the tribe argues, because the objects remain the property of the Navajo Nation. And that means the Navajo Nation has final say over the objects.
The lawsuit also said that Congress, in establishing the moment, never authorized the Park Service to dispose of archeological resources with the tribe's consent "and over its express objections.''
"At most, National Park Service has been authorized by Congress to temporarily remove remains and cultural objects from the monument in order to preserve or protect them,'' the legal papers read.
But the attorneys have an alternate theory, telling Judge Paul Rosenblatt that if he concludes that Congress did transfer the title to the remains to the federal government, then that act is void as an unconstitutional taking without compensation.
Clark said archaeological remains are no longer being removed from the monument. He said the only time the issue arises is when some bones are inadvertently discovered, usually on or near the surface.
"And then we go through a process of notifying the tribes and figuring out what to do about those, if anything,'' he said.