## Facts

- The National Park Service (NPS) removed 303 sets of Native American human remains and associated funerary objects from Canyon de Chelly National Monument, largely without the Navajo Nation’s consent.
- After enactment of the Native American Graves Protection and Repatriation Act (NAGPRA), NPS initiated an inventory process to enable repatriation under NAGPRA procedures.
- In 1996, the Navajo Nation asserted ownership of the remains and objects and objected to NPS processing them under NAGPRA’s inventory-and-repatriation framework rather than returning them directly to the Nation.
- The Navajo Nation participated in the inventory process under protest; disputes persisted, and NPS withdrew a draft inventory in 2007.
- NPS sought advice from the Department of the Interior’s Office of the Solicitor about whether NAGPRA required continued inventory; the Solicitor’s Office responded by email that NPS must continue the NAGPRA inventory.
- The Navajo Nation alleged that proceeding under NAGPRA (rather than returning the remains to the Nation) violated treaties, federal statutes (including NAGPRA), and the Fifth Amendment.
- The Nation sued in federal district court under the Administrative Procedure Act (APA); the district court dismissed for lack of subject-matter jurisdiction, concluding there was no “final agency action” and thus no waiver of sovereign immunity.
- The Navajo Nation appealed.

## Issues

1. Whether the Solicitor’s email opinion, together with NPS’s decision to proceed with the NAGPRA inventory, constituted “final agency action” reviewable under the APA.
2. Whether the identified agency action was sufficiently definitive and carried legal consequences to satisfy the APA finality test.
3. If final agency action existed, whether the APA’s waiver of sovereign immunity permitted the suit to proceed in federal court.

## Decision

- The Ninth Circuit reversed the district court’s dismissal and remanded.
- The court held that the Solicitor’s email opinion and NPS’s decision to continue the NAGPRA inventory constituted final agency action.
- Because final agency action was adequately alleged, the APA’s waiver of sovereign immunity applied and the district court had jurisdiction to hear the claims.
- The court did not decide the merits of the treaty, statutory, or constitutional claims.

## Legal Principles

- An agency action is “final” under the APA when (1) it marks the consummation of the agency’s decision-making process and (2) it determines rights or obligations or produces legal consequences.
- Informal agency communications, including internal counsel advice conveyed by email, can qualify as final agency action when they reflect a definitive agency position and direct a required course of conduct.
- A jurisdictional dismissal based on sovereign immunity is improper where the plaintiff identifies (or plausibly alleges) final agency action reviewable under the APA.

## Conclusion

The Ninth Circuit held that the Department of the Interior’s email directive requiring NPS to proceed under NAGPRA, coupled with NPS’s decision to continue the inventory, was final agency action, allowing the Navajo Nation’s APA challenge to proceed on remand.


Navajo Nation v. U.S. Dep’t of the Interior, 819 F.3d 1084 (9th Cir. 2016)