The University House at the University of California-San Diego. The ancestral remains were discovered on the grounds. Photo from UCSD
The 9th Circuit Court of Appeals today upheld the dismissal of a lawsuit that challenged the repatriation of tribal ancestors to the Kumeyaay Nation in California.
The University of California declared the remains to be "Native American" but scientists sued to stop their return under the Native American Graves Protection and Repatriation Act. A federal judge dismissed the case, saying it required the involvement of the 12 Kumeyaay tribes and the Kumeyaay Cultural Repatriation Committee, a tribal entity.
By a 2-1 vote, the 9th Circuit agreed. NAGPRA doesn't waive tribal sovereign immunity so the Kumeyaay tribes and the repatriation committee can't be joined without consent, the decision stated.
"There is no doubt that the tribes and the repatriation committee have a legally protected interest," the court wrote.
The ancestral remains -- believed to represent at least two people -- were discovered in 1976 on the grounds of the chancellor’s official residence at the University of California-San Diego. They are estimated to be between 8,900 and 9,600 years old.
The Kumeyaay people have lived in the same area for tens of thousands of years so they requested the return of the remains. The University of California at first balked at the claim but later determined they were "Native American" and published notice in the Federal Register on December 5, 2011, a step towards potential repatriation to the tribes.
There is no guarantee, however, that the remains will indeed be returned, the 9th Circuit noted. That's one of the reasons why the court recognized the legal interests of the Kumeyaay tribes and the repatriation committee.
"Contrary to the plaintiffs’ assertions, the university
cannot sufficiently represent the interests of the tribes or
repatriation committee," the decision stated. "At present, their interests are
aligned. There is some reason to believe that they will not
necessarily remain aligned."
"However, as the district court pointed out, the university 'has a broad obligation to serve
the interests of the people of California, rather than any particular subset, such as the people of the Kumeyaay tribes,'" it continued. "Thus, the different motivations of the two parties could lead to a later divergence of interests."
The sole dissenting vote from Judge Mary H. Murguia, who argued that the determination of "Native American" could be litigated without the tribes' involvement,
makes the case ripe for a rehearing. Further appeals could lead to the U.S. Supreme Court, which has never heard a NAGPRA case.
Turtle Talk has posted briefs from the case, White
v. University of California. Oral arguments can be found on the Indian.Com SoundCloud.
9th Circuit Decision:
White v. University of California (August 27, 2014)
Federal Register Notice:
of Inventory Completion: The University of California, San Diego, San Diego,
CA (December 5, 2011)
Steven Newcomb: Scientists
lay claim to Kumeyaay ancestors (04/15)
New Scientist: Remains at
center of NAGPRA feud in California (05/16)
School barred from returning remains to Kumeyaay
Professors file a competing
lawsuit over ancestral remains (4/25)
Kumeyaay Nation sues university to repatriate