White v. Univ. of Cal., No. 12–17489.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: THOMAS
• Citation: 765 F.3d 1010
• Parties: 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.
• Docket Number: No. 12–17489.
• Decision Date: 27 August 2014

765 F.3d 1010

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.

No. 12–17489.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Dec. 3, 2013.
Filed Aug. 27, 2014.

[765 F.3d 1014]

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

Michael Mongan (argued) and Michelle Friedland, Munger, Tolles & Olson LLP, San Francisco, CA; Charles F. Robinson, Karen J. Petrulakis, and Margaret L. Wu, Office of the General Counsel, University of California, Oakland, CA; Bradley Phillips, Munger, Tolles & Olson LLP, Los Angeles, CA; Dennis Klein, Office of the Campus Counsel, University of California San Diego, La Jolla, CA, 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, CA, for Defendant–Appellee Kumeyaay Cultural Repatriation Committee.

[765 F.3d 1015]

Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:12–cv–01978–RS.
Before: STEPHEN S. TROTT, SIDNEY R. THOMAS, and MARY H. MURGUIA, Circuit Judges.

OPINION
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 Dieguefio, 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

[765 F.3d 1016]

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. See25 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 existingIndian 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.” See25 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

[765 F.3d 1017]

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. L.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...