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White v. University of California

United States Court of Appeals, Ninth Circuit

August 27, 2014

TIMOTHY WHITE; MARGARET SCHOENINGER; ROBERT L. BETTINGER, Plaintiffs-Appellants,
v.
UNIVERSITY OF CALIFORNIA; REGENTS OF THE UNIVERSITY OF CALIFORNIA; JANET NAPOLITANO; MARYE ANNE FOX, in her individual and official capacity as Chancellor of the University of California, San Diego; GARY MATTHEWS, in his individual and official capacity as Vice Chancellor of the University of California, San Diego; KUMEYAAY CULTURAL REPATRIATION COMMITTEE, Defendants-Appellees

Argued and Submitted December 3, 2013, San Francisco, California

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Appeal from the United States District Court for the Northern District of California. D.C. No. 3:12-cv-01978-RS. Richard Seeborg, District Judge, Presiding.

SUMMARY[*]

Native Graves Protection and Repatriation Act

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.

Lauren Coatney (argued), James McManis, Michael Reedy, and Christine Peek, McManis Faulkner, San Jose, California, for Plaintiffs-Appellants.

Michael Mongan (argued) and Michelle Friedland, Munger, Tolles & Olson LLP, San Francisco, California; Charles F. Robinson, Karen J. Petrulakis, and Margaret L. Wu, Office of the General Counsel, University of California, Oakland, California; Bradley Phillips, Munger, Tolles & Olson LLP, Los Angeles, California; Dennis Klein, Office of the Campus Counsel, University of California San Diego, La Jolla, California, for Defendants-Appellees Regents of the University of California, Mark G. Yudof, Janet Napolitano, Marye Anne Fox, and Gary Matthews.

Dorothy Alther (argued), California Indian Legal Services, Escondido, California, for Defendant-Appellee Kumeyaay Cultural Repatriation Committee.

Before: Stephen S. Trott, Sidney R. Thomas, and Mary H. Murguia, Circuit Judges.

OPINION

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THOMAS, Circuit Judge:

In this appeal, we consider whether the Native American Graves Protection and Repatriation Act (" NAGPRA" or " the Act" ) abrogates tribal sovereign immunity and, if not, whether the district court properly dismissed this declaratory judgment action because the tribes and their representatives were indispensable parties under Fed.R.Civ.P. 19 and could not be joined in the action. We conclude that NAGPRA does not abrogate tribal sovereign immunity and that the affected tribes and their representatives were indispensable parties. Therefore, we affirm the district court's judgment.

I

In 1976, Gail Kennedy, a professor at the University of California-Los Angeles (" UCLA" ), led an archaeological field excavation project on the property of the Chancellor's official residence at the University of California-San Diego (" UCSD" or " the University" ). During the excavation, the archaeological team discovered a double burial site and uncovered two human skeletons (the " La Jolla remains" ). Scientists estimate that the La Jolla remains are between 8977 to 9603 years old, making them among the earliest known human remains from North or South America.

The property on which the La Jolla remains were discovered was aboriginally occupied by members of the Kumeyaay Nation, which consists of a number of federally recognized Indian tribes.[1] The Kumeyaay, also known as the Ipai, Tipai, or the Diegueño, aboriginally occupied areas of the southwestern United States and northwest Mexico. The Kumeyaay Nation currently occupies various lands extending from San Diego and Imperial Counties in California to 75 miles south of the Mexican border.[2]

Since their discovery, the University has maintained custody of the La Jolla remains, but they have been stored at multiple locations, including UCLA, the San Diego Museum of Man, the National Museum of Natural History, and the Smithsonian Institution. The La Jolla remains are presently in the physical custody of the San Diego Archaeological Center.

The present dispute is over the custody of the La Jolla remains. The Tribes and their representatives claim the right to

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compel repatriation of the La Jolla remains to one of the Kumeyaay Nation's member tribes. Repatriation is opposed by Plaintiffs Timothy White, Robert L. Bettinger, and Margaret Schoeninger (" Plaintiffs" or " the Scientists" ), professors in the University of California system, who wish to study the La Jolla remains.

Resolution of the dispute is largely governed by NAGPRA, which was passed by Congress in 1990. NAGPRA provides a framework for establishing ownership and control of (1) newly discovered Native American remains and funerary objects (collectively " cultural items" ) and (2) cultural items already held by certain federally funded museums and educational institutions. See 25 U.S.C. § § 3001-3013. NAGPRA was enacted in response to widespread debate surrounding the rights of tribes to protect the remains and funerary objects of their ancestors and the rights of museums, educational institutions, and scientists to preserve and enhance the scientific value of their collections. See, e.g., Bonnichsen v. United States, 367 F.3d 864, 874 n.14 (9th Cir. 2004); S. Rep. No. 101-473, at 3 (1990) (describing testimony " indicat[ing] the need for a process in which meaningful discussions between Indian tribes and museums regarding their respective interests in the disposition of human remains and objects in the museum[s'] collections could be discussed and the resolution of competing interests could be facilitated" ).

NAGPRA applies only to " Native American" cultural items, and it defines " Native American" to mean " of, or relating to, a tribe, people, or culture that is indigenous to the United States." 25 U.S.C. § 3001(9). In Bonnichsen, we interpreted NAGPRA's definition of " Native American" to mean of or relating to a " presently existing Indian trib[e]," people, or culture. 367 F.3d at 875.

The Department of the Interior is the agency charged with administering NAGPRA. Under NAGPRA, the Secretary must establish a review committee for the purpose of making findings and recommendations related to " the identity or cultural affiliation of cultural items" or " the return of such items." See 25 U.S.C. § 3006(c)(3). The Review Committee's recommendations are " advisory only and not binding on any person." 43 C.F.R. § 10.16(b).

NAGPRA contains, among other things, an " ownership" provision and a set of " repatriation" provisions. The ownership provision applies only to Native American cultural items excavated on federal or tribal lands after the effective date of the Act. 25 U.S.C. § 3002. The provision generally vests ownership and control over the cultural items in the lineal descendants of a deceased Native American. § 3002(a)(1). If lineal descendants cannot be identified, then the provision vests ownership in the tribe on whose land the remains were discovered (if they were discovered on tribal lands), or in the tribe having the closest " cultural affiliation" with the remains (if they were discovered on non-tribal federal lands). § 3002(a)(2)(A)-(B). If the remains are discovered on non-tribal federal lands and no cultural affiliation can be established, then the ownership provision vests ownership and control in the tribe " that is recognized as aboriginally occupying the area in which the objects were discovered." § 3002(a)(2)(C)(1). NAGPRA defines " cultural affiliation" as " a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group." § 3001(2). NAGPRA permits tribes to prove aboriginal occupation by way of a final judgment from the Indian Claims Commission or the

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United States Court of Federal Claims, a treaty, an Act of Congress, or an Executive Order. 43 C.F.R. § 10.11(b)(2)(ii).

NAGPRA's repatriation provisions apply to Native American cultural items already held by a federal agency or museum at the time that NAGPRA was enacted, and therefore apply to the La Jolla remains, which at that time were already in the University's possession. The Act's repatriation provisions require the agency or museum to compile an inventory of the " Native American" cultural items within its possession and to determine each item's " geographical and cultural affiliation." 25 U.S.C. § 3003(a). Upon the request of a culturally affiliated tribe or organization, the agency or museum must " expeditiously return" culturally affiliated items to the tribe. § 3005(a)(1). If no cultural affiliation is established, then the provisions provide that " such Native American human remains and funerary objects shall be expeditiously returned where the requesting Indian tribe . . . can show cultural affiliation by a preponderance of the evidence based on geographical kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion." § 3005(a)(4).

The repatriation provisions also permit the agency or museum to delay the return of culturally affiliated items if the items are " indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States." § 3005(b). The repatriation provisions do not, however, provide a course of action for circumstances in which the remains are " culturally unidentifiable." See generally Rebecca Tsosie, NAGPRA and the Problem of " Culturally Unidentifiable" Remains: The Argument for a Human Rights Framework, 44 Ariz. St. B.J. 809, 817 (2012) (describing Congress's intent to permit the Secretary of the Interior to promulgate regulations addressing culturally unidentifiable remains).

As a " museum" subject to NAGPRA,[3] the University promulgated " Policy and Procedures on Curation and Repatriation of Human Remains and Cultural Items." Pursuant to that policy, the University also established a systemwide " Advisory Group on Cultural Affiliation and Repatriation of Human Remains and Cultural Items" (" the University Advisory Group" ) to facilitate compliance with NAGPRA. The University Advisory Group reviews campus decisions regarding cultural affiliation and repatriation and assists in the resolution of disputes that arise involving cultural items in the University's possession. It is made up of at least " one University faculty member delegated principal responsibility for compliance with [the University's] policy" and " two Native American members to be selected by the President or designee from among nominees submitted by each campus." The Vice Provost for Research is the liaison to the University Advisory Group from the University's Office of the President.

The Native American Heritage Commission (" Heritage Commission" ) is the California state agency charged with identifying and cataloging Native American cultural resources. See Cal. Pub. Res. Code § § 5097.91, 5097.94. Pursuant to its authority under state law, the Heritage Commission notifies the " most likely descend[ant]" of Native American remains and provides that descendant an opportunity

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to inspect the site from which the remains were removed. Cal. Pub. Res. Code § 5097.98. It also makes recommendations " for treatment or disposition, with appropriate dignity, of the human remains." Id. The state-law " most likely descend[ant]" determination does not resolve any questions of affiliation under NAGPRA.

In March 2007, the Heritage Commission identified the Kumeyaay Cultural Repatriation Committee (" the KCRC" or the " Repatriation Committee" ) as the " most likely descendant" for the La Jolla remains. The Repatriation Committee is a tribal organization that was formed in 1997 by tribal resolutions from each of its twelve Kumeyaay Nation member tribes. The organization describes itself as " an outgrowth of tribal leaders and members [sic] concerns over the repatriation efforts, or lack thereof, under [NAGPRA] in San Diego."

In August 2006, the Repatriation Committee sent a letter to the University requesting that the La Jolla remains be repatriated to one of its member tribes. In late 2007, the University began consulting with the Repatriation Committee to determine the geographical and cultural affiliation of the La Jolla remains. Concurrent to those consultation efforts, the University also conducted, pursuant to its policy for complying with NAGPRA, an academic assessment to determine the cultural affiliation of the La Jolla remains. The assessment was completed in May 2008.

The academic assessment concluded that the La Jolla remains are " culturally unidentifiable." The assessment found " that there is not a preponderance of evidence to support an affirmation of cultural identification or affiliation with any modern group." With respect to the Kumeyaay, the assessment concluded,

Although there is evidence from material culture that people have lived in the San Diego region since the late Pleistocene or early Holocene, the linguistic analyses and archaeological evidence indicate that the Kumeyaay moved into the region within the last few thousand years. Kumeyaay folklore and oral tradition emphasize water (both fresh and marine) and a specific region within the Mohave Desert as their places of origin. Given the early Holocene age of the skeletons, we placed less emphasis on the evidence from these sources. . . . [H]aplogroups present in a terminal Pleistocene skeleton from the Pacific Northwest and in extant coastal Native Californians are rare or absent in the few Kumeyaay mitochondrial genomes so far analyzed. The burial pattern of the 2 skeletons recovered from the UCSD property differs from that of the Kumeyaay as reported in early ethnographies.[4]

The assessment also concluded that " [a]ll that can be said conclusively is that the skeletal morphology of the two skeletons provides no support for a finding of cultural affiliation between the two and the Kumeyaay." Based on the assessment, the University filed its required Notice of Inventory Completion and inventory with the Department of the Interior listing the La Jolla remains as not culturally identifiable

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with the Tribes. The inventory was silent regarding any determination of whether the La Jolla remains are " Native American" as that term is defined under NAGPRA.

After the academic assessment was completed, it was forwarded to the University Advisory Group for use in preparing a recommendation. At the same time, the University's Vice Chancellor for Resource Management and Planning, Gary Matthews, wrote to University Provost and Executive Vice President Rory Hume describing the 2006 repatriation request and urging the Provost to repatriate the La Jolla remains. Matthews noted that " [t]here are no competing requests for repatriation, and the KCRC is the legally recognized [most likely descendant] in San Diego, as confirmed by the State of California Native American Heritage Commission." Matthews went on to note that " Native Americans comprise less than 1% of the students at UC San Diego with not one Kumeyaay student represented in those meager numbers," and concluded that " [o]ne strategic and meaningful step forward would be to address the spirit of the law and required actions contained within NAGPRA" by repatriating the remains to the Repatriation Committee. " This action would have a profound effect on bridging the gap that is clearly evident between the Native American Community and the University of California."

In February 2009, the University prepared a proposed request form asking the Department of the Interior's NAGPRA review committee to act on an agreement between the University and the Repatriation Committee that would permit transfer of the La Jolla remains to the Tribes. In that request for action, the University stated that the La Jolla remains were " determined to be Native American" based on their age, the location in which they were excavated, and oral traditional and folkloric information provided by the Tribes. Specifically, the form stated,

[T]he Kumeyaay firmly believe that their people have lived in this region since the " beginning." For example, the Viejas Band considers the Kumeyaay (referred to as Digueno) to be the original native inhabitants of San Diego County -- having lived in this region for more than 10,000 years. See http://www.viejasbandofkumeyaay.org/html /tribal_history/kumeyaay_history.html. Similarly, the Sycuan Band states that their ancestors have lived in the San Diego area for 12,000 years -- " [t]he earliest documented inhabitants in what is now San Diego County are known as the San Dieguito Paleo-Indians, dating back to about 10,000 B.C." See http://sycuan.com/history.html. In addition, the local Kumeyaay " avow a deep sense of personal and ...

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