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.

Ninth Circuit to Re-Hear Big Lagoon Rancheria Appeal Sept. 17, 2014

Here:

Big Lagoon — CA9 Order Setting Oral Argument

En banc materials here.

Panel materials here.

Ninth Circuit Briefs in Hopland Band of Pomo Indians v. Jewell (ISDEAA Law Enforcement Funding)

Here:

Hopland Band Opening Brief

Federal Answer Brief

Hopland Reply Brief

Lower court materials here:

21 Tribal Motion for Summary J

32 US Motion for Summary J

32-1 Cruzan Declaration

34 Tribal Response

38 US Reply

55 DCT Order

We posted on this case here and here.

Complaint Challenging New 30-Year Eagle Permit Rule

Here is the complaint in Shearwater v. Ashe (N.D. Cal.).

Plaintiffs are challenging a final nationwide regulation promulgated by the U.S. Fish and Wildlife Service (“FWS” or “Service”) and the U.S. Department of the Interior (“DOI”) on December 9, 2013 that “extend[ed] the maximum term for programmatic permits” to kill or otherwise “take” bald and golden eagles from five years to thirty years. 78 Fed. Reg. 73704. This major rule change – the “thirty-year eagle take rule” – applies to industrial activities of all Case5:14-cv-02830 Document1 Filed06/19/14 Page1 of 23 kinds that incidentally take federally protected eagles in the course of otherwise lawful activities
but, as acknowledged by the Service, was promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles. Id. at 73709. However, the rule was adopted in flagrant violation of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f (“NEPA”) because the Service did not prepare any document analyzing the environmental impacts of the rule change, as required by NEPA and its implementing regulations. In addition, the rule change violates the Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d (“BGEPA”), and the Administrative Procedure Act, 5 U.S.C. § 706(2), because the rule subverts the basic eagle protection purposes of BGEPA and eliminates crucial procedural and other safeguards for eagle populations without any adequate explanation. Accordingly, the regulation should be vacated and remanded to Defendants for compliance with federal law.

 

Ninth Circuit Grants En Banc Review in Big Lagoon Rancheria v. State of California

Here:

2014 0611 Order Granting Petition for Rehearing En Banc

En banc petition here. Supporting amicus briefs here.

Lower court materials here.

Preliminary Injunction Issued by Paskenta Tribal Court

Here is the order in Freeman v. Freeman (Paskenta Tribal Court):

PTCV-14-001-2014-5-29 – Preliminary Injunction Order

Materials here.

More Tribal Court Filings in Paskenta Leadership Dispute

Here are the new materials in Freeman v. Freeman (Paskenta Band of Nomlaki Indians Tribal Court):

PTCV-14-001 – 2014-5-27 Motion for Preliminary Injuction and Default Judgment

PTCV-14-001 – 2014-5-27 – Declaration of M Jones

PTCV-14-001 – 2014-5-27 – Second Declaration of G. Freeman

Prior posts on this issue here, here, and here.

And a related document:

4-16-14 BIA Letter re Legitimate Paskenta Tribal Council

Ninth Circuit Materials in Redding Rancheria Challenge to IGRA Section 20 Regulations

Here are the materials in Redding Rancheria v. Salazar [Jewell]:

Redding Rancheria Opening Brief

Robinson Rancheria Amicus Brief

Interior Answer Brief

Redding Rancheria Reply

Oral argument audio here.

Lower court materials here and here.

Amici Supporting Big Lagoon Rancheria’s En Banc Petition

Here:

Big Lagoon v California – 64 – US brief

Big Lagoon v California – 67-2 – NCAI USET brief

Big Lagoon v California – 68 – CILS Ltr

The en banc petition is here.

The panel materials are here.

Big Lagoon Rancheria En Banc Petition

Here:

Petition for Panel Rehearing

The panel materials are here.