On August 21, 2015, the 9th Circuit Court of Appeals denied three University of California professors’, Timothy White, Robert L. Bettinger, and Margaret Schoeninger, Petition for an En Banc Hearing. The professors sought a full Court review of a decision by a three member panel of the Court that affirmed the dismissal of the professors’ law suit against the University of California, its officials and the Kumeyaay Cultural Repatriation Committee (KCRC). At the heart of the professors’ law suit are human remains dated at over 9,000 years old that were excavated from the University of San Diego’s property in 1975. After the passage of the Native America Grave Protection and Repatriation Act (NAGPRA) in 2000, KCRC sought repatriation of the remains it believes are Kumeyaay and were removed from Kumeyaay aboriginal lands. The University resisted KCRC’s claims and denied repatriation until 2010 when new regulations were adopted by the National Park Service (NPS) that instructed facilities and institutions to repatriate human remains to a tribe whose aboriginal lands the remains were removed from, regardless of whether “cultural affiliation” could be demonstrated.
On the eve of the Public Notice, published by NPS, announcing the University’s intent of repatriate the remains to a member tribe of KCRC, the professors sued the University. Initially the educators were successful in obtaining an injunction stopping the University from transferring the remains to KCRC until the professors’ law suit was concluded, but ultimately lost at the 9th Circuit.
Both the University and KCRC moved to dismiss the professors’ law suit on the grounds that KCRC was an indispensable party to the action and could not be joined because of tribal immunity. The lower court granted both motions to dismiss and the professors appealed the ruling. The 9th Circuit Court affirmed the dismissal. The professors then sought an en banc hearing to review the Court panel’s decision, their request was denied on August 21, 2015.
The Court victory was short lived, as the professors have notified KCRC that it will be filing a Writ of Certiorari to Supreme Court and seeking a stay of any repatriation of the remains to KCRC until the Supreme Court has acted on their Writ.”
“KCRC was happy to hear the Court’s ruling as this has been a very long road with numerous delays in repatriating their ancestors. 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,” said Dorothy Alther, Executive Director for California Indian Legal Services.
The State Bar of California’s Office of Legal Services is seeking applications from attorneys interested in serving on the California Indian Legal Services Board of Directors. The deadline for applications is Sept. 7.
CILS is a nonprofit Legal Services Corporation-funded program created to provide legal assistance to the rural poor. Interested applicants should apply by letter to Louisa Ayrapetyan, The State Bar of California, Office of Legal Services, 180 Howard St., San Francisco, CA 94015. The application should also include a resume that outlines work experience, community activity and educational background. Questions may be directed to Ayrapetyan at 415-538-2534 or firstname.lastname@example.org.
Originally posted in the California Bar Journal – August 2015
On July 13, 2015 District Court Judge Burrell Jr. dismissed the Bishop Paiute Tribe case against Inyo County, the Inyo County Sheriff and District Attorney for lack of jurisdiction. The Tribe’s law suit was filed after a tribal law enforcement officer was arrested and criminally charged for restraining and detaining, on December 24, 2014, a non-Indian on the reservation who was in violation of both a tribal and state domestic violence protection by being at the home of her estranged tribal member husband. The Tribe’s law suit sought Declaratory and Injunctive Relief against the County and County officials re-affirming tribal inherent authority to stop, restrain, detain, and investigate violations of tribal, state, and federal law and to turn over non-Indians violators to proper law enforcement authorities.
The District Court’s dismissal does not address the merits of the Tribe’s law suit, but instead basis its dismissal on procedural grounds. The Court found that the Tribe’s January 2015 response to Inyo County Sheriff’s “Cease and Desist” Order removed the controversy between the parties, leaving the Court without jurisdiction to proceed with the case. The Tribe’s January response to the “Cease and Desist” Order, took direct issue with the County’s actions with regard to its law enforcement officer and the County’s interpretation of tribal inherent authority and federal law over non-Indians. However, the Tribe agreed that its officers would not enforce California state law on the reservation, which the Tribe firmly believes its officers do and have not engage in. Regardless, the Court found the Tribe’s statement in its response to the County Sheriff resolves the issues between the parties.
Dorothy Alther, Executive Director of California Indian Legal Services stated, “The Tribe is very disappointed in the District Court’s dismissal. The Tribe is essentially back to where it started from. The fundamental question(s) raised in the Tribe’s law suit have not been addressed and tribal law enforcement officers remain uncertain on whether they will be arrested and criminally prosecuted for performing their legal duties under tribal authority and defined by federal law. The Court’s finding there is no “controversy” in the Tribe’s case fails to acknowledge that a tribal police officer is still being prosecuted and there is no indication that future tribal officers won’t be prosecuted.”
The Tribe is preparing to appeal the District Court’s dismissal to the 9th Circuit Court of Appeals.
California Indian Legal Services is the largest non-profit Indian law firm in California with four offices statewide and has been in operation for 48 years. CILS represents California Tribes, tribal organizations, and low-income individuals on matters of Indian law.
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Invitation to Comment
Model Comments to Proposed Amendments to CRC (click to download in Word format)
Comments are due by 5:00 p.m. June 17th. They may be emailed to: email@example.com or submitted online at: http://www.courts.ca.gov/invitation-comment-form.htm?proposal=SPR15-27&deadline=June%2017,%202015. When submitted online, attachments (such as a pdf letter) may not be uploaded; comments must be copied and pasted into a form field.