Timothy White v. University of California
765 F.3d 1010
| 9th Cir. | 2014Background
- In 1976 UCSD excavated two ancient human skeletons (the "La Jolla remains") estimated ~9,000–10,000 years old; remains have been in UC custody and are presently held by the San Diego Archaeological Center.
- The Kumeyaay Nation (a group of federally recognized tribes) and the Kumeyaay Cultural Repatriation Committee (KCRC) claim repatriation under NAGPRA; the University performed an academic assessment finding the remains "culturally unidentifiable."
- UCSD filed a Notice of Inventory Completion and ultimately listed the remains as "Native American" and designated the La Posta Band for disposition; the KCRC asserted the 2010 DOI regulations require transfer of culturally unidentifiable Native American remains to tribes aboriginal to the area.
- Three university scientists (Plaintiffs) sued seeking declaratory relief that the remains are not "Native American" under NAGPRA so they could study them; the University removed the case and added KCRC as a defendant.
- The district court dismissed under Fed. R. Civ. P. 19, holding (1) NAGPRA does not abrogate tribal sovereign immunity, (2) KCRC is an arm of the tribe and immune, and (3) the tribes/KCRC are necessary and indispensable parties who cannot be joined — appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Scientists: court declaration that remains are not "Native American" would likely let them study the remains, so injury is redressable | University: even if remains not "Native American," Univ. has discretion and might not allow study, so relief speculative | Held: Plaintiffs have standing; University policy makes access likely, so redressability satisfied |
| Whether NAGPRA abrogates tribal sovereign immunity | Plaintiffs: §3013 jurisdictional language and United States' waiver imply tribes' immunity abrogated | University/KCRC: Congress must unequivocally express abrogation; NAGPRA contains no explicit tribal waiver; APA waiver for U.S. doesn't abrogate tribal immunity | Held: NAGPRA does not abrogate tribal sovereign immunity |
| Whether KCRC (and tribes) enjoy sovereign immunity / waived it | Plaintiffs: KCRC filed suit and incorporated; so it waived immunity | University/KCRC: KCRC is an "arm of the tribe" (created by tribal resolutions, funded/controlled by tribes) and did not unequivocally waive immunity by suing or incorporating | Held: KCRC is an arm of the tribe and retains sovereign immunity; no waiver shown |
| Rule 19 joinder / indispensability | Plaintiffs: case limited to whether remains are "Native American"; tribes' absence can be adequately represented by University; KCRC not indispensable | University: tribes/KCRC have a non-frivolous claim to remains; their rights would be extinguished if absent; immunity makes joinder infeasible and dismissal appropriate | Held: Tribes and KCRC are necessary and, because immune, indispensable parties; dismissal under Rule 19 proper |
Key Cases Cited
- Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (tribal sovereign immunity and limits on suits against tribes)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) (Congressional abrogation of tribal immunity must be unequivocal; immunity extends to tribal activities)
- Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004) (interpretation of NAGPRA's definition of "Native American")
- Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004) (abrogation of tribal immunity must be explicit)
- Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992) (Rule 19 interest/representation concepts)