NAGPRA

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.

NYTs on Apache Dispute with American Museum of Natural History

Matthew L.M. Fletcher

Here.

Michigan Public Radio Environment Report — Two Stories

Kate Fort

Here.

This morning The Environment Report covered NAGPRA and a road project in Oscoda County where workers uncovered remains. The Department of Transportation is working with the Saginaw Chippewa Tribe.

Also, the Report covered potential invasive species in the Great Lakes and an online resource developed by NOAA’s Great Lakes Environmental Research Lab to identify the species (including killer shrimp. Huh.).

 

Challenge to Repatriation of “La Jolla Skeletons” Dismissed

Matthew L.M. Fletcher2 Comments

Here are the materials in White v. Regents of the University of California (N.D. Cal.):

Corrected UCSD Brief and Motion to Dismiss

KCRC Motion to Dismiss

White Opposition

University Reply

KCRC Reply

DCT Order Granting Motion to Dismiss

Our prior post on this case is here.

Battle Creek Museum Works Toward NAGPRA Compliance

Adrea Korthase

This Livingston Daily article about the Kingman Museum in Battle Creek mentions the need for an intern to assist in returning remains and artifacts. I didn’t find the internship post, but the museum’s website is here.

AP Story on New NAGPRA Federal Regulations

Adrea Korthase

The story about response to 2010 federal regulations can be found various places, including here.

Although the story focuses primarily on the University of California, Berkeley and the Kumeyaay Nation, it also mentions a variety of other universities, including the University of Michigan. Last month, UM’s NAGPRA Advisory Committee issued policies and procedures along with a cover letter. A previous post about the regulations can be found here.

Burial Site Disturbed on Mackinac Island

Kate Fort

From Interlochen Public Radio

 On Mackinac Island, developers of a new hotel discovered what appears to be a massive burial site last week. Police say it’s now clear some of the bones unearthed in the excavation are human, likely ancestors of the Sault Ste. Marie Tribe of Chippewa Indians.

Several hundred bones have been unearthed so far after a historic building known as the McNally Cottage was demolished. Property owner, Ira Green, plans to build a new three-story hotel where the building once stood. Some of the bones on the construction site belong to animals, while others are human remains. Mayor of Mackinac Island, Margaret Doud, said Saturday that she was not surprised bones had been found on the property. Downtown business owner, Tony Brodeur agreed, “You know, I’m not entirely surprised. And now… it’s going to stir up a lot of emotions… There has got to be a diplomatic solution.”

***

One historian thinks more care should be taken to preserve the historic integrity of the site. Brian Leigh Dunnigan is the curator of maps for the William L. Clements Library at the University of Michigan and released a book which is an iconographic history of the Straits of Mackinac region from 1615-1860. Dunnigan says the site is just beside the original St. Anne’s Catholic Church which was relocated in the mid-1800s. He explained further, “After the cemetery was closed in December of 1851, supposedly all of the burials were removed and put in the new Catholic cemetery behind fort Mackinac.”