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White et.al v. California Board of Regents et.al and ...

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White et.al v. California Board of Regents et.al and Kumeyaay Cultural Repatriation Committee
Dorothy Alther, Executive DirectorCalifornia Indian Legal Services
KCRC represents the 12 Kumeyaay Tribes in San Diego County:Barona, Campo, Ewiaapaayp, Inaja, Jamul, Los Posta, Manzanita, Mesa Grande, San Pasqual, Iipay Nation of Santa Ysabel, Sycuan and ViejasWas established in 1997 by tribal resolution with a mission of ensuring that tribal remains and artifacts were being properly repatriated to the appropriate tribe under NAGPRA
Who is the Kumeyaay Cultural Repatriation Committee (KCRC)
Each tribe appoints or elects a member to the KCRC;Meet monthly;KCRC is the official NAGPRA contact for federal agencies and museums (universities);Oversees the repatriation of Kumeyaay remains and artifacts; andEngages in consultation with federal agencies and museums on repatriation cases.
Who is the Kumeyaay Cultural Repatriation Committee (KCRC)
In1976, while excavating from the ocean-side cliffs of La Jolla, California, two human remains were unearthed. Radiocarbon dating yields an age for the remains to be between8977-9603years old.The excavating was conducted as part of an undergraduate class that was engaged in an archaeological field research project on the University House (aka the University of California, San Diego, Chancellor’s House.)
The La Jolla Human Remains
Thearea of the excavationiswell known to be rich with Native American burials and artifacts and several years ago was designated as a sanctified cemetery under California state law.The excavationwasled by Professor Gail Kennedy. After their discovery, Professor Kennedy took the remains to the University of California, Los Angeles (“UCLA”.)
TheLa Jolla HumanRemains
Inthe years since their discovery the Native American remains have been stored at numerous locations: UCLA; the San Diego Museum of Man; the National Museum of Natural History; the Smithsonian Institution; San Diego State University Department of Anthropology andin 2008 they were transferred to UCSD at the request of KCRC and are storedat the San Diego ArchaeologicalCenter.
TheLa Jolla HumanRemains
The remains have been subjected to extensive scientific study since 1976, including a multi-decade research project at the Smithsonian Institution that was led by one of world’s foremost forensic anthropologist, Dr DouglasOwsley.KCRChas over the years criticized the treatment and disrespectful handling and study of the Native American remains, especially the lacquering of the remains to preserve them.
TheLa Jolla Human Remains
When the remains were transferred to UCSD, an inventory under NAGPRA was needed now that they were in UCSD possession.The University of California, since passage of NAGPRA, has at each UC a NAGPRA Working Group which is responsible for conducting the inventory of their collections.
TheLa Jolla Human Remains
The Working Group then makes a recommendation to the UC NAGPRA Advisory Group which has facility members, Native American representatives and other members.The Advisory Group then makes the final recommendation to the UC President on the inventory which is then submitted to NPS.
TheLa Jolla Human Remains
The UCSD Working Group studied the remains and several facility scientists were consulted as well as KCRC;Although KCRC began its request for repatriation in 2000, the University did not act on the request until 2008 when it began the inventory process;The Working Group made a determination that the human remains could not be “culturally affiliated” with the Kumeyaay.
TheLa Jolla Human Remains
The Working Group’s recommendation was submitted to the Advisory Group, who approved it and submitted a final Notice of Inventory Completion to the UC President who in turn approved it and it was submitted to NPS.At this point KCRC was preparing to file a challenge of the inventory to the National NAGPRA Review Committee.
TheLa Jolla Human Remains
On May 14, 2010 NPS finalized NAGPRA regulation§10.11 which provides that human remains that are not “culturally affiliated” should be turned over to the tribe whose aboriginal lands they were found in.It is undisputed the La Jolla remains were discovered in Kumeyaay’s aboriginal lands.
New NAGPRA Regulation§10.11
KCRC immediately requested repatriation under the new regulationsChancellor Fox welcomed the requestProcessUCSD prepared an Inventory NoticeCirculated to UCSD Working GroupSubmitted to the Systemwide NAGPRA Advisory GroupSubmitted to UC PresidentDelegated authority to Chancellor Fox to make the determinationNotice of Inventory goes to NPS and issued in Federal Register for 30 days.
New NAGPRA Regulation§10.11
Professor Margaret Schoeninger sat on the UCSD NAGPRA Working Group during both reviews of the Inventory processShe and Professor Robert Bettinger sat on the NAGPRA Advisory Group and brought up for the first time that the remains were not “Native American”
Repatriation Process
There was no consensus at the Advisory Group on what to recommend however the matter was submitted to the UC PresidentThe UC President gave a conditional approval of the Notice of Inventory CompletionIt was submitted to NPS and published in the Federal Register—30 days expired on January 5, 2012
RepatriationProcess
On January 4, 2012 legal counsel for Professor Timothy White, Professor Schoeninger and Professor Robert Bettinger contacted the UC and stated they were going to file a TRO to stop any transfer of the remainsThere were several attempts to reach a settlement but those efforts failed
Temporary Restraining Order
The Professors finally announced they would be filing the TRO on April 16th(a Monday) in Northern CaliforniaKCRC filed a lawsuit against the UC on April 13th(a Friday) in the Federal District Court of Southern California
TemporaryRestraining Order
KCRC sought immediate transfer of the remains as there was no legal basis stopping the transfer (Inventory was completed, submitted to NPA, published for 30 days, and January 5, 2012 came and gone.)University filed a Motion to Dismiss, we replied
KCRC v. UNIVERSITY OF CALIFORNIA
By this time the Professors had filed theirlawsuitThe University stipulated to the TRO and Preliminary InjunctionBy doing so KCRC and the University stipulated to place KCRC’s case on hold pending an outcome of the Professors’ case
KCRCv. UNIVERSITY OF CALIFORNIA
The University filed a motion to dismiss the Professors’ case on several groundsOne argument was that KCRC was an “indispensable” party and could not be joined as a party because KCRC has tribal sovereign immunityThe Professors moved to amend their complaint and added KCRC as a defendant
White et. al. v. University of California
The Professors case centers on two basic arguments:The remains are not “Native American” and as such are not subject to NAGPRA; andThe remains have such scientific value that they must be preserved for study, which they have been denied.
Whiteet. al. v. University of California
Some important facts:These remains have been in the University’s possession for 36 years;During much of this time the remains location were unknown by the University;Professor Schoeninger’s husband was the archeologist that discovered the remains, so she has had personal knowledge of them for 36 years;
Whiteet. al. v. University of California
Professor Schoeninger hasstudiedthe remains and published her research;Professor Schoeninger was the lead professor on the NAGPRA Working Group when they were making a determination on the “culturally affiliation” of the remains back to 2008;BothProfessor Schoeninger and Bettinger were on the NAGPRA Advisory Group when the remains werefound to not to be “culturally affiliated”;
White et. al. v. University of California
The University has treated the remains as “Native American” since 2008 when it included them in the Notice of Inventory;At no time did Professor Schoeninger or Bettinger raise the issue that the remains were not “Native American” when they were making their “cultural affiliation” determination;Professor Schoeninger conducted a consultation with KCRC per NAGPRA requirements—why if they were not “Native American?”;
White et. al. v. University of California
After being joined as a defendant, KCRC filed a motion to dismiss arguing that it is an arm of the tribal government and has tribal immunity;Both the University’s and KCRC’s motions were argued in September of 2012 and were granted on October 9, 2012;The Professors filed a Notice of Appeal on November 6, 2012 to the 9thCircuit Court of Appeals;
White et. al. v. University of California
White et.al. v. University of California and KCRC et.al.
Professors appealed to the 9th Circuit Court ofAppeals:KCRC was not a tribal entity because it had been state incorporated at one time and was thus a state created entityCongress waived tribal immunity when it passed NAGPRAKCRC was not “indispensable” and the case should proceed
White et.al. v. University of California and KCRC et.al.
Professors lost at the 9thCircuit Court of Appeals on August 27, 2014;KCRC was a tribal entityNAGPRA did not waive tribal immunityKCRC was an indispensable party that could be joinedDenied request for an “en banc” hearingDenied Supreme Court review by a Writ of Certiorari January 28, 2016
Repatriation was made the week of May 14, 2016;A ceremony for the remains was held May 19, 2016 and reburial was made on May 20, 2016.
Finally Repatriation

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White et.al v. California Board of Regents et.al and ...