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Kumeyaay Nation still waiting to repatriate ancestors despite court win

Thursday, August 27, 2015

The University House at the University of California-San Diego. The ancestral remains were discovered on the grounds. Photo from UCSD

A drawn-out court fight is preventing the Kumeyaay Nation in California from reburying tribal ancestors that were taken from their resting places nearly 40 years ago.

The remains were excavated in 1976 on the grounds of the chancellor’s residence at the University of California in San Diego. The ancestors -- believed to represent two individuals -- are estimated to be between 8,900 and 9,600 years old, making them among the oldest in the United States.

Their age makes them a prime target for scientific study. That's why three University of California professors filed suit in December 2011, hoping to prevent the institution from potentially repatriating the remains to their tribal descendants.

The academics didn't get too far. A federal judge dismissed the case, holding that it required the involvement of the 12 tribes of the Kumeyaay Nation and the Kumeyaay Cultural Repatriation Committee, a tribal entity. But since the tribes enjoy sovereign immunity, they can't be joined without their consent.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in White v. University of California

The battle didn't end, though. The professors took the case to the 9th Circuit Court of Appeals but they still weren't able to revive the lawsuit. By a 2-1 vote, a three-judge panel held that the tribes are "necessary parties" in the dispute.

"There is no doubt that the tribes and the repatriation committee have a legally protected interest," Judge Sidney R. Thomas wrote for the majority last August.

Thomas pointed out that there is no guarantee that the university will in fact repatriate the remains. A notice published in the Federal Register on December 5, 2011, declares the ancestors to be "Native American" but only says that disposition "may proceed" to the tribes.

"Contrary to the plaintiffs’ assertions, the university cannot sufficiently represent the interests of the tribes or repatriation committee," Thomas wrote. . "At present, their interests are aligned. There is some reason to believe that they will not necessarily remain aligned."

A view of the U.S. Supreme Court. Photo by Indianz.Com

The dissenting vote came from Judge Mary H. Murguia, who argued that the determination of "Native American" could be litigated without the tribes' involvement. The disagreement could have made the case ripe for a rehearing but the 9th Circuit on Friday denied the professors' request for one, a move welcomed by the tribes.

"KCRC was happy to hear the court's ruling as this has been a very long road with numerous delays in repatriating their ancestors," Dorothy Alther, the executive director of the California Indian Legal Services, said in a press release.

Alther was less excited to share another development. She said the professors already told the tribes that they will ask the U.S. Supreme Court to hear the case and put a hold on any proceedings at the university level.

"With the announcement that the professors will be filing a writ to the Supreme Court will only mean further delay, but we remain optimistic that someday this matter will be resolved," Alther said.

A reconstruction of the skull of Kennewick Man by a scientist who doesn't believe the remains are Native American. Photo from Wikipedia

The justices have never heard a case involving the Native American Graves Protection and Repatriation Act. The law was passed in 1990 to ensure tribes can reclaim their ancestors and artifacts to which they can demonstrate a cultural affiliation.

Even when the 9th Circuit delivered a near fatal blow to NAGPRA in 2004 by holding that it does not apply to the remains of the Kennewick Man, whose age is comparable to those found in California, the Supreme Court passed on the chance to weigh in on the high-profile dispute.

The Kumeyaay people have lived in the same area where the remains were found for tens of thousands of years so they believe they have a strong case for repatriation. They have already agreed to allow the La Posta Band of Mission Indians handle any reburial ceremonies.

The Colville Tribes, the Nez Perce Tribe, the Umatilla Tribes and the Yakama Nation also thought they had a strong case with respect to the Kennewick Man, whom they know as Techaminsh Oytpamanatityt The 9th Circuit's creation of an exception for very old remains allowed them to be studied by scientists who have since concluded that they are in fact linked to the tribes on a genetic basis.

Tribes sought to close the loophole by adding two words to NAGPRA but they were met with serious opposition from the scientific community. Legislation failed to advance in 2005 and in 2007 and the issue hasn't been brought up since.

The lack of a fix essentially prevents the federal government from returning the Kennewick Man to his descendants even though DNA demonstrates a connection. To address the situation, Sen. Patty Murray (D-Washington) has introduced S.1979, the Bring the Ancient One Home Act, a bill that requires the U.S. Army Corps of Engineers to transfer the Kennewick Man to the Washington Department of Archeology and Historic Preservation. The state would then allow reburial by the tribes.

9th Circuit Decision:
White v. University of California (August 27, 2014)

Federal Register Notice:
Notice of Inventory Completion: The University of California, San Diego, San Diego, CA (December 5, 2011)