Ninth Circuit Court of Appeals Hands the Kumeyaay Cultural Repatriation Committee Another Victory
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.
