White v. University of California

The National Graves Protection and Repatriation Act does not abrogate tribal sovereign immunity.

The present dispute is over the custody of remains discovered in an archaeological dig on the property of the University of San Diego California. The site of location was originally occupied by members of the Kumeyaay Nation, which consists of a number of federally recognized Indian tribes. The tribes and their representatives claim the rights to repatriation of the remains to one of the Kumeyaay Nation’s member tribes. The plaintiffs, qualified researchers of archeological remains, oppose repatriation. The district court dismissed the action under the Native Graves Protection and Repatriation Act (“NGPRA”) on the basis that the affected tribes and their representatives were indispensable parties and could not be joined in the action and that the Repatriation Committee was entitled to sovereign immunity. On appeal, the panel affirmed the district court’s decision that the affected tribes and their parties were indispensable parties. The panel also affirmed the district court’s conclusion that the NGPRA does not abrogate tribal sovereign immunity because Congress did not unequivocally express that purpose. It reasoned that the Repatriation Committee was entitled to tribal sovereign immunity as an “arm of the tribe” by considering:(1) the method for creation of the economic entities; (2) their purpose; (3) their structure, ownership and management including the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and the entities. Finally, in determining whether the Tribes and the Repatriation Committee were necessary parties under Fed. R. Civ. P. 19(a)(1) and, if under Rule 19(b) the party is indispensable such that in equity and good conscience the suit should be dismissed, the panel found district court properly dismissed the action pursuant to Rule 19; and that the public interest exception to Rule 19 does not apply. Therefore the district court is AFFIRMED.