NAGPRA

DOI Consultation Notice on DOI Reorganization

Sarah M Donnelly

Download(PDF): Tribal Listening Sessions on E.O. 13871: Reorganization of the Executive Branch

Acting Assistant Secretary for Indian Affairs, Michael S. Black, invites Tribal leaders to attend one of the listed listening sessions to provide input on improving “efficiency, effectiveness, and accountability” at the Department of the Interior.

DATES

Nonprofit Quarterly Article on French Auction of Native Artifacts

Sarah M Donnelly

Link to “Native Americans Protest Sale of Artifacts” by Alexis Buchanan here.

Excerpt:

Perhaps auction houses would not be so unwavering in the sale of these items if they did not fetch such high prices. The Guardian reports that France has a long history, tied to its colonial past in Africa, of collecting and selling tribal artifacts. The Paris-based “Indianist” movement in the 1960s celebrated indigenous cultures, and interest in tribal art in Paris was revived in the early 2000s following the highly lucrative sales in Paris of tribal art owned by late collectors André Breton and Robert Lebel. As such, many of these items have high value. The Hopi Tutuveni reported that in April 2013, the Néret-Minet Tessier & Sarrou auction house in Paris generated $1.2 million as 70 Hopi religious objects went for an average of $17,143, with one object created around 1880 fetching $209,000. In Monday’s protested sale, Yahoo News reported that twelve sacred Kachina masks went under the hammer for 116,000 euros ($129,000)—with the most precious, the Crow Mother, going for 38,000 euros ($42,300)—about a third less than expected, but still a high value.

Winnemem Wintu Tribe Prevails against Feds on Protecting Coonrod Flats, Loses on Other Sacred Sites Claims

Matthew L.M. Fletcher1 Comment

Here are the materials in Winnemem Wintu Tribe v. Dept. of Interior (E.D. Cal.), also known as Franco v. USFS:

131-1 USFS Motion for Summary J

133-1 Winnemem Wintu Tribe Opposition

134 Winnemem Wintu Tribe Motion to Strike

136 USFS Opposition

139 Winnemem Wintu Tribe Reply

147 DCT Order

Federal Court Grants Federal Officer Summary Judgment in Excessive Force Suit brought by Deceased Alleged Indian Graverobber

Matthew L.M. Fletcher

Here are the materials in Estate of Redd v. Love (D. Utah):

93 Love Motion for Summary J

102 Estate Opposition

115 Reply

120 DCT Order

An excerpt:

This case arises out of Dr. James D. Redd’s tragic suicide the day after federal agents arrested him and his wife for trafficking in stolen Native American artifacts, theft of government property, and theft of tribal property. Dr. Redd’s Estate brought this Bivens action against Bureau of Land Management Agent Daniel Love. The Estate claims Agent Love violated Dr. Redd’s Fourth Amendment right to be free from the use of excessive force when Agent Love sent over fifty-three federal agents, many of whom were heavily armed and wearing bulletproof vests, to raid and search Dr. Redd’s home.

Agent Love moves for summary judgment, arguing qualified immunity shields him from the Estate’s claim. After careful consideration, the court grants Agent Love’s motion.

The estate previously survived a federal summary judgment motion, and those materials are here.

 

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

Split Ninth Circuit Panel Affirms Dismissal of Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

Matthew L.M. Fletcher2 Comments

Here is the opinion in White v. University of California.

From the court’s syllabus:

The panel affirmed the district court’s dismissal of an action under the Native Graves Protection and Repatriation Act on the basis that the affected tribes and their representatives were indispensable parties and could not be joined in the action.

The action concerned the “La Jolla remains,” two human skeletons discovered during an archaeological excavation on the property of the Chancellor’s official residence at the University of California-San Diego. The tribes claimed the right to compel repatriation of the La Jolla remains to one of the Kumeyaay Nation’s member tribes. Repatriation was opposed by the plaintiffs, University of California professors who wished to study the remains. The professors sought a declaration that the remains were not “Native American” within the meaning of NAGPRA, which provides a framework for establishing ownership and control of newly discovered Native American remains and funerary objects, as well as cultural items already held by certain federally funded museums and educational institutions.

The panel held that the plaintiffs had Article III standing to bring suit because if the La Jolla remains were repatriated,
the plaintiffs would suffer a concrete injury that was fairly traceable to the challenged action. In addition, this injury was likely to be redressed by a favorable decision.

The panel held that NAGPRA does not abrogate tribal sovereign immunity because Congress did not unequivocally express that purpose. The panel held that the “Repatriation Committee,” a tribal organization, was entitled to tribal sovereign immunity as an “arm of the tribe.” In addition, the Repatriation Committee did not waive its sovereign immunity by filing a separate lawsuit against the University or by incorporating under California law.

The panel held that the tribes and the Repatriation Committee were necessary parties under Federal Rule of Civil Procedure 19(a)(1) and were indispensable under Rule 19(b). In addition, the “public rights” exception to Rule 19 did not apply. Accordingly, the district court properly dismissed the action.

Dissenting, Judge Murguia agreed with the majority that the plaintiffs had Article III standing, that NAGPRA did not abrogate the sovereign immunity of the tribes, and that the Repatriation Committee was entitled to sovereign immunity. She would hold, however, that the Committee was not a necessary and indispensable party because it was neither necessary nor indispensable to resolution of the question whether the University properly determined that the La Jolla remains were Native American within the meaning of NAGPRA.

Briefs are here.