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 Briefs in Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

Here are the briefs in White v. University of California:

White Opening Brief

Kumeyaay Cultural Repatriation Committee Answer Brief

University Answer Brief

White Reply

Lower court materials are here.

Challenge to Repatriation of “La Jolla Skeletons” Dismissed

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.

Cal. Board of Regents Motion to Dismiss Kumeyaay Suit Seeing Repatriation of “La Jolla Skeletons”

Here is the motion in Kumeyayy Cultural Repatriation Committee v. University of California (S.D. Cal.):

California Motion to Dismiss

Materials in a related case, White v. University of California, are here.

Materials in White v. University of California: Effort to Prevent Repatriation of “La Jolla Skeletons” under NAGPRA

Here are the materials, available in a federal court removal petition by the defendants:

California Removal Petition