GM 14-070

Ninth Circuit Affirms Dismissal of Challenge to University's Decision to Repatriate Ancient Remains to a Tribal Consortium; Sovereign Immunity Key Factor

On August 27, 2014, the Ninth Circuit Court of Appeals issued a decision affirming the decision by the federal District Court for the Northern District of California to dismiss a case filed by a group of professors against the University of California seeking to block the repatriation of human remains to an intertribal consortium, the Kumeyaay Cultural Repatriation Committee (KCRC). The KCRC made a limited appearance in the case to file a motion to dismiss based on tribal sovereign immunity from suit. KCRC argued that it has sovereign immunity, just like its constituent tribes—and it does not matter that the consortium is incorporated under State law. The district court agreed and dismissed for failure to join a necessary and indispensible party, and a panel of the Ninth Circuit affirmed, with one judge dissenting in part. An implication of this case is that a tribe which has been designated as the recipient of items to be repatriated under the Native American Graves Protection and Repatriation Act (NAGPRA) may be able to block challenges to that decision by virtue of immunity to suit. The case is White v. University of California.

The case has important implications for intertribal consortia or tribal entities that enjoy tribal sovereign immunity, but whose immunity from suit may be challenged in court since the entities are not tribes themselves. Tribes have often sought to anticipate such challenges by incorporating entities under tribal or federal law, concerned that incorporating under state law would open them up to suit. This decision holds that incorporation under state law does not, in itself, waive that sovereign immunity.

The case involves two sets of human remains which are believed to be about 9,000 years old and which were excavated in 1976 from a site on the campus of the University of California at San Diego. After a long process, the University of California found that the remains are Native American and—although not affiliated with a specific tribe—decided to repatriate them to KCRC, who chose the La Posta Band as guardian.

Three professors sued, alleging the University had failed to make an adequate finding that the remains are “Native American” within the meaning of NAGPRA and, therefore, the decision to transfer the remains to one of the KCRC tribes was improper. The University moved to dismiss the case on the lack of subject matter jurisdiction because the twelve tribes and the KCRC itself were necessary and indispensable parties (meaning they had to be part of the case as their rights were at stake), but were all immune from suit due to tribal sovereign immunity.

The Ninth Circuit agreed with the lower court and held in favor of the tribes and KCRC. Some of the key points in the court’s opinion are: (1) NAGRPA did not waive tribal sovereign immunity; (2) the KCRC was—even while being a California corporation—an arm of the tribes imbued with sovereign immunity; and (3) the interests of KCRC (and the La Posta Band) could not be adequately protected by the University, and thus KCRC was not only a necessary but also an indispensable party, which could not be joined to suit due to immunity.

At the trial court level, the professors had argued that the tribes and KCRC should not be able to invoke tribal immunity from suit in a NAGPRA case because the law provides for a right for any person to sue for a violation. The lower court said it was troubled that tribal sovereignty could frustrate the review of NAGPRA actions—a result the court did not think Congress intended. The judge dismissed the case reluctantly, saying Congress should not allow “tribes to claim the benefit of NAGPRA without subjecting themselves to its attendant limitations.”

The Appeals Court was not troubled by such concerns, holding that “sovereign immunity applies regardless of the merit of the action or overarching policy considerations,” and saying the Supreme Court rejected “such a holistic statutory argument” in Michigan v. Bay Mills Indian Community from May of this year.

In dissent, while she agreed with the sovereign immunity findings, Judge Murguia would have ruled that the tribes and KCRC were not indispensable parties. She thought the University should have to revisit its threshold finding that the remains were “Native American” for purposes of NAGPRA, and thought that the University could adequately represent the interests of KCRC and the Tribes in reconsidering that finding. She would have had the trial court determine if the remains were “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” This threshold question was the stumbling block for tribes in the Kennewick Man case, Bonnichsen v. U.S., a case in which the Ninth Circuit interpreted the clause “of, or relating to, a tribe, people, or culture that is indigenous to the United States” in the definition of “Native American.” Emphasizing the word “is,” the court held that human remains had to be connected culturally to a current tribe to be Native American, conflating a finding of “cultural affiliation” into a threshold question of whether NAGPRA applied. That decision discounted tribal traditional beliefs regarding connections to ancient ancestors. The Bonnichsen case is still the law in the Ninth Circuit, meaning that the initial finding that the Kumeyaay remains were “Native American” was an important factor in the outcome of this case.

If we may be of further assistance regarding the tribal sovereign immunity of intertribal consortia, the White v. University of California case, or NAGPRA-related issues please contact us at the information below.