Ninth Circuit Materials Navajo Nation NAGPRA Dispute with Federal Government

Here are the briefs in Navajo Nation v. Dept. of Interior:

Navajo Opening Brief

US Answer Brief

Navajo Reply

Oral argument video and audio.

CA9 opinion here. Opinion after settlement here.

District court materials:

13 US Motion to Dismiss

17 Navajo Response

18 US Reply

25 DCT Order

An excerpt:

This action stems from the long-standing desire of the plaintiff, the Navajo Nation, to obtain the immediate repatriation of 303 sets of human remains and other associated cultural objects removed by the National Park Service (“NPS”) from the Canyon de Chelly National Monument (“the Monument”), which is a unit of the NPS located within the exterior boundaries of the Navajo Reservation; the human remains and cultural objects at issue are currently being held by the NPS at its Western Archeology Conservation Center in Tucson, Arizona.

Sac and Fox Nation v. Borough of Jim Thorpe Cert Petition

Here:

Thorpe Petition and Appendix (00059355)

Question presented:

The Native American Graves Protection and Repatriation Act (NAGPRA) applies to “any” institution or state or local government agency that receives federal funds and “has possession of, or control over,” Native American human remains. The Act requires these covered entities to inventory those remains and, at the request of Native American tribes or lineal descendants, to return them.

The question presented is whether the absurdity doctrine allows courts to exempt otherwise covered entities from NAGPRA based on how the entity acquired the Native American remains.

Lower court materials here.

News coverage here. Thanks to MKN.

Traverse City to Decide What to Do with 7000 Native Artifacts

Here is “What’s Next For The Con Foster Collection?”

According to the article, “The city is likely in violation of the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, which outlines a process for returning certain Native American cultural items to lineal descendants.”

Denial of En Banc Petition in Thorpe v. Borough of Thorpe

Here.

Previous coverage of the case here.

Debate on JURIST re: NAGPRA and the Jim Thorpe Case

Here is Walter Olson’s post “NAGPRA, Indian Burials, and the Unquiet Grave.”

Here is Elizabeth C. Varner, Diane Penneys Edelman and Leila Amineddoleh’s “NAGPRA and Congress’s Foresight.”

H/T Pechanga.

The Third Circuit materials are here (en banc petition pending).

Third Circuit Accepts NCAI and Sen. Nighthorse Campbell Amicus Briefs in Jim Thorpe Appeal

Here:

ORDER (MCKEE, Chief and Circuit Judge) granting motions of the National Congress of the American Indians and Ben Nighthorse Campbell to file in support of the petition for rehearing. The Clerk is directed to file the briefs on the docket as statements in support of rehearing and circulate them to the full Court. No response by Appellant is required unless the court directs, filed. [13-2446, 13-2451] (TMK)

The en banc petition is here. The amicus briefs are here.

Third Circuit En Banc Petition Materials in Thorpe v. Borough of Jim Thorpe (UPDATED)

Here:

Petition for Rehearing (12-8-14)

NCAI Mtn for Leave and Proposed Brief in Support Filed 12-8-14

Senator Ben Nighthorse Campbell amicus brief

Senator Ben Nighthorse Campbell motion for leave to file amicus brief

UPDATE:

Borough Opposition to NCAI Amicus Brief

NCAI Reply in Support of Amicus Motion

Third Circuit panel materials here.

Third Circuit Holds NAGPRA Does Not Require Repatriation of Jim Thorpe’s Remains

Here is the opinion in Thorpe v. Borough of Jim Thorpe:

Jim Thorpe Opinion [Update — the clerk has withdrawn this version of the opinion for quality control.]

An excerpt:

Thorpe’s remains are located at their final resting place and have not been disturbed. We find that applying NAGPRA to Thorpe’s burial in the Borough is such a clearly absurd result and so contrary to Congress’s intent to protect Native American burial sites that the Borough cannot be held to the requirements imposed on a museum under these circumstances. We reverse the District Court and hold that the Borough is not a “museum” under NAGPRA for the purposes of Thorpe’s burial.

Briefs here and here. Oral argument audio here.

Lower court materials here.

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

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.

Ann Tweedy Reviews Paper on Oral History by Hershey, McCormack, and Newell

Oral History and Perceptions of Subjectivity,” from Jotwell.

The Hersey et al. paper, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, is here.