cultural resources

Supreme Court Petition Involving NAGPRA, Rule 19, and Tribal Immunity

Matthew L.M. Fletcher1 Comment

Here is the petition in White v. Regents of the University of California:

White Cert Petition

Questions presented:

The Native American Graves Protection and Repatriation Act (NAGPRA), which governs repatriation of human remains to Native American tribes, contains an enforcement provision that states, “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.” 25 U.S.C. § 3013. Over a strong dissent, a divided Ninth Circuit panel held that a party can prevent judicial review of controversial repatriation decisions by claiming a tribe is a “required party” under Rule 19 of the Federal Rules of Civil Procedure, if the tribe invokes tribal immunity. The questions presented are:
1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a “required party.”
2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.
Lower court materials here.
UPDATE (1/4/16): Anthropologists Amicus Brief

New University of North Dakota Nickname!

Matthew L.M. Fletcher1 Comment

They’re the Flickertails Fighting Hawks.

Here is “After Decades of Hand-Wringing, U. of North Dakota Has a New Nickname.”

Ann Arbor Drops Columbus Day

Matthew L.M. Fletcher

Here is “City Council votes to stop recognizing Columbus Day” from the Michigan Daily.

Kristen Carpenter & Carla Fredericks: “Why use “r–skin” word at all?”

Matthew L.M. Fletcher

From the Denver Post, here.

NAGPRA Regs on Unclaimed Ancestors and Funerary Objects, etc.

Matthew L.M. Fletcher

Here is 43 CFR Part 10.

The summary:

This final rule provides procedures for the disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated or discovered on, and removed from, Federal lands after November 16, 1990. It implements section 3(b) of the Native American Graves Protection and Repatriation Act.

The Verge: “Adidas offers design resources to schools looking to ditch racist mascots”

Matthew L.M. Fletcher

Here.

Tribal Challenge to Willits Bypass Project

Matthew L.M. Fletcher1 Comment

Here is the complaint in Coyote Valley Band of Pomo Indians of California v. United States Dept. of Transportation (N.D. Cal.):

Complaint

An excerpt:

Defendants in this case must not be allowed to destroy historic properties, cultural resources, and sacred sites to build the Willits Bypass Project. This case challenges Defendants’ ongoing failure to properly identify and protect Plaintiffs’ ancestral, sacred, cultural, and archaeological sites and resources in the construction of the Willits Bypass Project. As a result of Defendants’ ground-disturbing activity both along the route and in the mitigation lands of the Willits Bypass Project, Defendants have destroyed the ancestral Native American sacred and cultural sites of Plaintiffs the Coyote Valley Band of Pomo Indians and the Round Valley Indian Tribes of California and failed to protect such places in the area of the Project, including the mitigation lands.

Effort to Stop Thirty Meter Telescope Project on Mauna Kea Fails

Matthew L.M. Fletcher

Here are the materials in Amsterdam v. State of Hawai’i (D. Haw.):

3 Motion for PI

22 Opposition

23-1 Motion to Dismiss

35 DCT Order

Ninth Circuit Oral Argument Audio in Oklevueha Native American Church v. Lynch

Matthew L.M. Fletcher

Here.

Briefs here.

Jasmine Abdel-Khalik on Disparaging Trademarks

Matthew L.M. Fletcher

Jasmine Abdel-Khalik has posted “Disparaging Trademarks: Who Matters,” published in the Michigan Journal of Race & Law. Here is the abstract:

For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group — albeit for various reasons. For those trademarks that are offensive to targeted groups, some may argue that the market will solve. In other words, some may assume that purchasers in the marketplace will respect the objection, there will be insufficient purchases of the product under the mark, and the mark will disappear. However, objections raised by smaller populations in the United States often fall on deaf ears, and the marks continue to be used in the marketplace. The Washington NFL football team trademarks are an example.

Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and relatively rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous (meaning offensive to the general population) or disparaging (meaning offensive to the referenced group). In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging registration prohibition less effective in protecting non-majority groups from offensive trademarks.

This Article seeks to clarify the history, purpose, and utilization of the disparaging registration prohibition. In so doing, the Article also seeks to detangle the scandalous and disparaging registration prohibitions and refocus the disparaging registration prohibition on a broader and necessary purpose, which is to protect non-majority voices from the numerous harms caused by stereotyping and by rendering painful terms commonplace but no less painful.