Timothy White v. University of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY WHITE; MARGARET No. 12-17489

SCHOENINGER; ROBERT L.

BETTINGER, D.C. No. Plaintiffs-Appellants, 3:12-cv-01978- RS v.

UNIVERSITY OF CALIFORNIA; OPINION

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.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Argued and Submitted December 3, 2013—San Francisco, California Filed August 27, 2014

Before: Stephen S. Trott, Sidney R. Thomas, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Sidney R. Thomas; Dissent by Judge Murguia

SUMMARY*

Native Graves Protection and Repatriation Act

The panel affirmed the district court’s dismissal of an action under the Native Graves…

dissenting:

I agree with the majority that Plaintiffs’ complaint contains sufficient factual allegations, which we must accept as true, to establish that a favorable judicial decision is likely to redress their alleged injuries. Plaintiffs therefore have Article III standing to bring this lawsuit. I also agree that the Native American Graves Protection and Repatriation Act (NAGPRA) does not abrogate the sovereign immunity of the Indian tribes, and that the district court properly exercised its discretion when it denied Plaintiffs’ request to conduct additional discovery on the question whether the Kumeyaay Cultural Repatriation Committee (KCRC) could properly be considered an “arm” of the Kumeyaay tribes. And, I agree that the district court properly concluded that the KCRC did not waive its immunity when it sued the University in the Southern District of California or when it incorporated under California state law.

The majority and I part ways, however, on the question whether the KCRC is a necessary and indispensable party under Federal Rule of Civil Procedure 19. Our precedents require us to resolve that question in light of the nature and scope of the parties’…

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 Caiifornia-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…