ELR Citation: ELR 20433
No(s). CIV 88-964 PCT EHC (D. Ariz. Feb 28, 1990)

The court enjoins the United States Department of the Interior and the Bureau of Indian Affairs (BIA) from continuing construction of fences and livestock watering facilities on portions of the Hopi Indian Reservation as part of a range restoration and management program until the BIA complies with the National Historic Preservation Act (NHPA). Members of the Navajo Tribe, claiming the construction interferes with their ability to practice their religion in violation of the First Amendment and other statutes, moved for a preliminary injunction to stop the construction activities on portions of land partitioned to the Hopi Tribe under court orders and the Navajo-Hopi Land Settlement Act. The court first holds that individual Navajos have standing to bring actions under federal statutes even though the Settlement Act contains a standing limitation intended to avoid delay in resolving the Navajo-Hopi dispute over land and relocation. The interests that individuals may have in the preservation of historical, archaeological, and cultural artifacts are not necessarily the same as those of the tribe in all instances, and such claims are not sufficiently related to the inter-tribal land dispute that the standing limitation is applicable. Moreover, the standing limitation in the Settlement Act is not applicable to plaintiffs' claims alleging violations of their individual constitutional rights related to sites of significance to individuals. However, the court holds that individual members of the respective tribes do not have standing to bring actions involving denial of access or interference with tribal religious shrines. Congress found that these interests were tied to the tribal land interests and intended that such matters be resolved in the context of litigation between tribal chairmen.

Turning to the merits, the court first holds that plaintiffs failed to make the necessary showing to obtain a preliminary injunction on the basis of equal protection and breach of fiduciary duty claims. The court holds that plaintiffs' First Amendment free exercise claim fails under the Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Ass'n, 18 ELR 21043. The fact that a person's ability to practice his religion will be virtually destroyed by a governmental program does not allow him to impose a religious servitude on the property of the government, much less on property that the government holds in trust for another sovereign Indian tribe. The land in issue here is part of the partitioned lands granted the Hopi Tribe and the rights claimed by plaintiff Navajos in Hopi lands are in total derogation of Hopi rights in and to their reservation. While the government may have certain responsibilities to consider the impact of public land projects on Indian religious practices, the same responsibilities cannot be imposed on the Hopi Tribe's rights to possess and use its reservation, or on the government in carrying out projects for the benefit of the Hopi Tribe on the Hopi Reservation pursuant to specific congressional authorization. The court next holds that plaintiffs do not have any individual free exercise claim under the American Indian Religious Freedom Act. The legislative history of the Act provides that it was meant to insure that American Indians were given the protection guaranteed under the First Amendment, not to grant them rights in excess of those guarantees. There is no intent in the Act to create a cause of action or any judicially enforceable individual rights.

The court next holds that the BIA must be enjoined from further project activities until in compliance with the NHPA. The area office of the BIA failed to engage in consultation with the State Historic Preservation Officer (SHPO) to provide efficient identification and adequate consideration of historic properties required under the NHPA and its regulations. Section 800.4(a)(1) of the NHPA regulations requires consultation by a BIA area office with the SHPO. As the procedures of the BIA Phoenix office are and were contrary to the letter and spirit of the regulations, plaintiffs have shown a substantial probability of success on the merits sufficient to grant the injunction. However, because the regulations contemplate participation by Indian tribes regarding properties beyond their own reservations, the Navajo Tribe must be afforded the opportunity to participate as interested persons. This conclusion does not infringe on the right of the Hopi Tribe to develop or use its lands, as the Navajo Tribe is not entitled to be a consulting party or to concur in any agreement. The regulatory scheme depends on consultation with appropriate persons to gather information concerning historic properties to facilitate the identification and adequate consideration of historic preservation in the face of new projects and undertakings, and allowing Navajo input will advance this goal. The court also holds that the federal government did not violate the NHPA for failing to locate, inventory, and nominate all properties under agency ownership or control that appear to qualify for inclusion in the National Register. Although the United States holds legal title to the Hopi partitioned lands in trust for the Hopi Indian tribe, the Indians have real ownership of the land and NHPA §110 does not apply to Indian lands.

The court next holds that plaintiffs' claims under the Historical and Archaeological Data Preservation Act (HADPA), the Archaeological Resources Protection Act (ARPA), Department of Interior guidelines, the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA) all fail. Plaintiffs have not established that the BIA or Hopi crews have found any data requiring surveys or other investigation, as required under the HADPA. Moreover, the ARPA, which sets up a permitting system to regulate excavation and removal of archaeological resources from public and Indian lands, is not applicable to the projects and construction activities in this case, since the activities are exempted from the ARPA and its regulations. The DOI guidelines, which address the disposition of human remains discovered or disturbed on federal lands, are not applicable at this stage because plaintiffs have not alleged or proven that any disturbance of remains has actually occurred. Plaintiffs' NEPA claim is without merit because Congress specifically provided in the Settlement Act that no action pursuant to, or in furtherance of, the Act shall be deemed a "major federal action" for purposes of NEPA. Finally, the court holds that judicial review under the APA is not available since the agency action cannot be considered final. Plaintiffs have not filed any administrative appeal or complaint with respect to the present construction activities, as provided for in BIA regulations.

Counsel for Plaintiffs
Lee Brooke Phillips
Big Mountain Legal Office
Flagstaff AZ 86001
(602) 779-1560

Counsel for Defendants
Steven Carroll
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000