Timothy White v. University of California , 765 F.3d 1010 ( 2014 )

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
2 WHITE V. UNIVERSITY OF 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 Protection and Repatriation
Act on the basis that the affected tribes and their
representatives were indispensable parties and could not be
joined in the action.
The action concerned the “La Jolla remains,” two human
skeletons discovered during an archaeological excavation on
the property of the Chancellor’s official residence at the
University of California-San Diego. The tribes claimed the
right to compel repatriation of the La Jolla remains to one of
the Kumeyaay Nation’s member tribes. Repatriation was
opposed by the plaintiffs, University of California professors
who wished to study the remains. The professors sought a
declaration that the remains were not “Native American”
within the meaning of NAGPRA, which provides a
framework for establishing ownership and control of newly
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WHITE V. UNIVERSITY OF CALIFORNIA 3
discovered Native American remains and funerary objects, as
well as cultural items already held by certain federally funded
museums and educational institutions.
The panel held that the plaintiffs had Article III standing
to bring suit because if the La Jolla remains were repatriated,
the plaintiffs would suffer a concrete injury that was fairly
traceable to the challenged action. In addition, this injury was
likely to be redressed by a favorable decision.
The panel held that NAGPRA does not abrogate tribal
sovereign immunity because Congress did not unequivocally
express that purpose. The panel held that the “Repatriation
Committee,” a tribal organization, was entitled to tribal
sovereign immunity as an “arm of the tribe.” In addition, the
Repatriation Committee did not waive its sovereign immunity
by filing a separate lawsuit against the University or by
incorporating under California law.
The panel held that the tribes and the Repatriation
Committee were necessary parties under Federal Rule of
Civil Procedure 19(a)(1) and were indispensable under Rule
19(b). In addition, the “public rights” exception to Rule 19
did not apply. Accordingly, the district court properly
dismissed the action.
Dissenting, Judge Murguia agreed with the majority that
the plaintiffs had Article III standing, that NAGPRA did not
abrogate the sovereign immunity of the tribes, and that the
Repatriation Committee was entitled to sovereign immunity.
She would hold, however, that the Committee was not a
necessary and indispensable party because it was neither
necessary nor indispensable to resolution of the question
whether the University properly determined that the La Jolla
4 WHITE V. UNIVERSITY OF CALIFORNIA
remains were Native American within the meaning of
NAGPRA.
COUNSEL
Lauren Coatney (argued), James McManis, Michael Reedy,
and Christine Peek, McManis Faulkner, San Jose, California,
for Plaintiffs-Appellants.
Michael Mongan (argued) and Michelle Friedland, Munger,
Tolles & Olson LLP, San Francisco, California; Charles F.
Robinson, Karen J. Petrulakis, and Margaret L. Wu, Office of
the General Counsel, University of California, Oakland,
California; Bradley Phillips, Munger, Tolles & Olson LLP,
Los Angeles, California; Dennis Klein, Office of the Campus
Counsel, University of California San Diego, La Jolla,
California, for Defendants-Appellees Regents of the
University of California, Mark G. Yudof, Janet Napolitano,
Marye Anne Fox, and Gary Matthews.
Dorothy Alther (argued), California Indian Legal Services,
Escondido, California, for Defendant-Appellee Kumeyaay
Cultural Repatriation Committee.
OPINION
THOMAS, Circuit Judge:
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
WHITE V. UNIVERSITY OF CALIFORNIA 5
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 California-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 remains were
discovered was aboriginally occupied by members of the
Kumeyaay Nation, which consists of a number of federally
recognized Indian tribes.1 The Kumeyaay, also known as the
Ipai, Tipai, or the Diegueño, aboriginally occupied areas of
the southwestern United States and northwest Mexico. The
Kumeyaay Nation currently occupies various lands extending
1
These tribes include the Barona Band of Mission Indians; Campo Band
of Kumeyaay Indians; the Ewiiaapaayp Band of Kumeyaay Indians; the
Inaja-Cosmit Band of Mission Indians; the Jamul Indian Village; the La
Posta Band of Mission Indians; the San Pasqual Band of Mission Indians;
the Iipay Nation of Santa Ysabel; the Sycuan Band of the Kumeyaay
Nation; and the Viejas Band of Kumeyaay Indians (collectively “the
Tribes” or the “Kumeyaay Nation”).
6 WHITE V. UNIVERSITY OF CALIFORNIA
from San Diego and Imperial Counties in California to 75
miles south of the Mexican border.2
Since their discovery, the University has maintained
custody of the La Jolla remains, but they have been stored at
multiple locations, including UCLA, the San Diego Museum
of Man, the National Museum of Natural History, and the
Smithsonian Institution. The La Jolla remains are presently
in the physical custody of the San Diego Archaeological
Center.
The present dispute is over the custody of the La Jolla
remains. The Tribes and their representatives claim the right
to compel repatriation of the La Jolla remains to one of the
Kumeyaay Nation’s member tribes. Repatriation is opposed
by Plaintiffs Timothy White, Robert L. Bettinger, and
Margaret Schoeninger (“Plaintiffs” or “the Scientists”),
professors in the University of California system, who wish
to study the La Jolla remains.
Resolution of the dispute is largely governed by
NAGPRA, which was passed by Congress in 1990.
NAGPRA provides a framework for establishing ownership
and control of (1) newly discovered Native American remains
and funerary objects (collectively “cultural items”) and
(2) cultural items already held by certain federally funded
2
Aboriginal interest in land generally is described as a tribe’s right to
occupy the land. It is not a property right, but “amounts to a right of
occupancy which the sovereign grants and protects against intrusion by
third parties.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279
(1955). The right, which is residual in nature, comes from the legal theory
that discovery and conquest gave conquerors the right to own the land but
did not disturb the tribe’s right to occupy it. See Johnson v. M’Intosh,
21 U.S. 8 Wheat 543, 588–91 (1823).
WHITE V. UNIVERSITY OF CALIFORNIA 7
museums and educational institutions. See 25 U.S.C.
§§ 3001–3013. NAGPRA was enacted in response to
widespread debate surrounding the rights of tribes to protect
the remains and funerary objects of their ancestors and the
rights of museums, educational institutions, and scientists to
preserve and enhance the scientific value of their collections.
See, e.g., Bonnichsen v. United States, 367 F.3d 864, 874 n.14
(9th Cir. 2004); S. Rep. No. 101-473, at 3 (1990) (describing
testimony “indicat[ing] the need for a process in which
meaningful discussions between Indian tribes and museums
regarding their respective interests in the disposition of
human remains and objects in the museum[s’] collections
could be discussed and the resolution of competing interests
could be facilitated”).
NAGPRA applies only to “Native American” cultural
items, and it defines “Native American” to mean “of, or
relating to, a tribe, people, or culture that is indigenous to the
United States.” 25 U.S.C. § 3001(9). In Bonnichsen, we
interpreted NAGPRA’s definition of “Native American” to
mean of or relating to a “presently existing Indian trib[e],”
people, or culture. 367 F.3d at 875.
The Department of the Interior is the agency charged with
administering NAGPRA. Under NAGPRA, the Secretary
must establish a review committee for the purpose of making
findings and recommendations related to “the identity or
cultural affiliation of cultural items” or “the return of such
items.” See 25 U.S.C. § 3006(c)(3). The Review
Committee’s recommendations are “advisory only and not
binding on any person.” 43 C.F.R. § 10.16(b).
NAGPRA contains, among other things, an “ownership”
provision and a set of “repatriation” provisions. The
8 WHITE V. UNIVERSITY OF CALIFORNIA
ownership provision applies only to Native American cultural
items excavated on federal or tribal lands after the effective
date of the Act. 25 U.S.C. § 3002. The provision generally
vests ownership and control over the cultural items in the
lineal descendants of a deceased Native American.
§ 3002(a)(1). If lineal descendants cannot be identified, then
the provision vests ownership in the tribe on whose land the
remains were discovered (if they were discovered on tribal
lands), or in the tribe having the closest “cultural affiliation”
with the remains (if they were discovered on non-tribal
federal lands). § 3002(a)(2)(A)–(B). If the remains are
discovered on non-tribal federal lands and no cultural
affiliation can be established, then the ownership provision
vests ownership and control in the tribe “that is recognized as
aboriginally occupying the area in which the objects were
discovered.” § 3002(a)(2)(C)(1). NAGPRA defines “cultural
affiliation” as “a relationship of shared group identity which
can be reasonably traced historically or prehistorically
between a present day Indian tribe or Native Hawaiian
organization and an identifiable earlier group.” § 3001(2).
NAGPRA permits tribes to prove aboriginal occupation by
way of a final judgment from the Indian Claims Commission
or the United States Court of Federal Claims, a treaty, an Act
of Congress, or an Executive Order. 43 C.F.R.
§ 10.11(b)(2)(ii).
NAGPRA’s repatriation provisions apply to Native
American cultural items already held by a federal agency or
museum at the time that NAGPRA was enacted, and therefore
apply to the La Jolla remains, which at that time were already
in the University’s possession. The Act’s repatriation
provisions require the agency or museum to compile an
inventory of the “Native American” cultural items within its
possession and to determine each item’s “geographical and
WHITE V. UNIVERSITY OF CALIFORNIA 9
cultural affiliation.” 25 U.S.C. § 3003(a). Upon the request
of a culturally affiliated tribe or organization, the agency or
museum must “expeditiously return” culturally affiliated
items to the tribe. § 3005(a)(1). If no cultural affiliation is
established, then the provisions provide that “such Native
American human remains and funerary objects shall be
expeditiously returned where the requesting Indian tribe . . .
can show cultural affiliation by a preponderance of the
evidence based on geographical kinship, biological,
archaeological, anthropological, linguistic, folkloric, oral
traditional, historical, or other relevant information or expert
opinion.” § 3005(a)(4).
The repatriation provisions also permit the agency or
museum to delay the return of culturally affiliated items if the
items are “indispensable for completion of a specific
scientific study, the outcome of which would be of major
benefit to the United States.” § 3005(b). The repatriation
provisions do not, however, provide a course of action for
circumstances in which the remains are “culturally
unidentifiable.” See generally Rebecca Tsosie, NAGPRA and
the Problem of “Culturally Unidentifiable” Remains: The
Argument for a Human Rights Framework, 44 Ariz. St. L.J.
809, 817 (2012) (describing Congress’s intent to permit the
Secretary of the Interior to promulgate regulations addressing
culturally unidentifiable remains).
10 WHITE V. UNIVERSITY OF CALIFORNIA
As a “museum” subject to NAGPRA,3 the University
promulgated “Policy and Procedures on Curation and
Repatriation of Human Remains and Cultural Items.”
Pursuant to that policy, the University also established a
systemwide “Advisory Group on Cultural Affiliation and
Repatriation of Human Remains and Cultural Items” (“the
University Advisory Group”) to facilitate compliance with
NAGPRA. The University Advisory Group reviews campus
decisions regarding cultural affiliation and repatriation and
assists in the resolution of disputes that arise involving
cultural items in the University’s possession. It is made up of
at least “one University faculty member delegated principal
responsibility for compliance with [the University’s] policy”
and “two Native American members to be selected by the
President or designee from among nominees submitted by
each campus.” The Vice Provost for Research is the liaison
to the University Advisory Group from the University’s
Office of the President.
The Native American Heritage Commission (“Heritage
Commission”) is the California state agency charged with
identifying and cataloging Native American cultural
resources. See Cal. Pub. Res. Code §§ 5097.91, 5097.94.
Pursuant to its authority under state law, the Heritage
Commission notifies the “most likely descend[ant]” of Native
American remains and provides that descendant an
opportunity to inspect the site from which the remains were
removed. Cal. Pub. Res. Code § 5097.98. It also makes
3
Section 3003 requires “[e]ach Federal agency and each museum” to
compile an inventory of Native American cultural items. The University,
as an “institution of higher learning,” is a “museum” under NAGPRA.
See § 3001(8). If the University does not comply with NAGPRA’s
provisions, it may incur a penalty. § 3007.
WHITE V. UNIVERSITY OF CALIFORNIA 11
recommendations “for treatment or disposition, with
appropriate dignity, of the human remains.” Id. The state-
law “most likely descend[ant]” determination does not
resolve any questions of affiliation under NAGPRA.
In March 2007, the Heritage Commission identified the
Kumeyaay Cultural Repatriation Committee (“the KCRC” or
the “Repatriation Committee”) as the “most likely
descendant” for the La Jolla remains. The Repatriation
Committee is a tribal organization that was formed in 1997 by
tribal resolutions from each of its twelve Kumeyaay Nation
member tribes. The organization describes itself as “an
outgrowth of tribal leaders and members [sic] concerns over
the repatriation efforts, or lack thereof, under [NAGPRA] in
San Diego.”
In August 2006, the Repatriation Committee sent a letter
to the University requesting that the La Jolla remains be
repatriated to one of its member tribes. In late 2007, the
University began consulting with the Repatriation Committee
to determine the geographical and cultural affiliation of the
La Jolla remains. Concurrent to those consultation efforts,
the University also conducted, pursuant to its policy for
complying with NAGPRA, an academic assessment to
determine the cultural affiliation of the La Jolla remains. The
assessment was completed in May 2008.
The academic assessment concluded that the La Jolla
remains are “culturally unidentifiable.” The assessment
found “that there is not a preponderance of evidence to
support an affirmation of cultural identification or affiliation
with any modern group.” With respect to the Kumeyaay, the
assessment concluded,
12 WHITE V. UNIVERSITY OF CALIFORNIA
Although there is evidence from material
culture that people have lived in the San
Diego region since the late Pleistocene or
early Holocene, the linguistic analyses and
archaeological evidence indicate that the
Kumeyaay moved into the region within the
last few thousand years. Kumeyaay folklore
and oral tradition emphasize water (both fresh
and marine) and a specific region within the
Mohave Desert as their places of origin.
Given the early Holocene age of the skeletons,
we placed less emphasis on the evidence from
these sources. . . . [H]aplogroups present in a
terminal Pleistocene skeleton from the Pacific
Northwest and in extant coastal Native
Californians are rare or absent in the few
Kumeyaay mitochondrial genomes so far
analyzed. The burial pattern of the 2
skeletons recovered from the UCSD property
differs from that of the Kumeyaay as reported
in early ethnographies.[4]
The assessment also concluded that “[a]ll that can be said
conclusively is that the skeletal morphology of the two
skeletons provides no support for a finding of cultural
affiliation between the two and the Kumeyaay.” Based on the
4
The Pleistocene is the time period spanning 2.6 million to 11,700 years
ago, and the Holocene is the time period spanning 11,700 years ago to the
present. A “haplogroup” is a population sharing a common ancestor. The
mitochondrial genome is the DNA string found in mitochondria, which is
normally inherited only from the mother. See International Science
Times, Tracing the Earliest Americans Through Mitochondrial DNA,
http://www.isciencetimes.com/articles/6344/20131119/tracing-earliest-
americans-through-mitochondrial-dna.htm (last visited July 23, 2014).
WHITE V. UNIVERSITY OF CALIFORNIA 13
assessment, the University filed its required Notice of
Inventory Completion and inventory with the Department of
the Interior listing the La Jolla remains as not culturally
identifiable with the Tribes. The inventory was silent
regarding any determination of whether the La Jolla remains
are “Native American” as that term is defined under
NAGPRA.
After the academic assessment was completed, it was
forwarded to the University Advisory Group for use in
preparing a recommendation. At the same time, the
University’s Vice Chancellor for Resource Management and
Planning, Gary Matthews, wrote to University Provost and
Executive Vice President Rory Hume describing the 2006
repatriation request and urging the Provost to repatriate the
La Jolla remains. Matthews noted that “[t]here are no
competing requests for repatriation, and the KCRC is the
legally recognized [most likely descendant] in San Diego, as
confirmed by the State of California Native American
Heritage Commission.” Matthews went on to note that
“Native Americans comprise less than 1% of the students at
UC San Diego with not one Kumeyaay student represented in
those meager numbers,” and concluded that “[o]ne strategic
and meaningful step forward would be to address the spirit of
the law and required actions contained within NAGPRA” by
repatriating the remains to the Repatriation Committee. “This
action would have a profound effect on bridging the gap that
is clearly evident between the Native American Community
and the University of California.”
In February 2009, the University prepared a proposed
request form asking the Department of the Interior’s
NAGPRA review committee to act on an agreement between
the University and the Repatriation Committee that would
14 WHITE V. UNIVERSITY OF CALIFORNIA
permit transfer of the La Jolla remains to the Tribes. In that
request for action, the University stated that the La Jolla
remains were “determined to be Native American” based on
their age, the location in which they were excavated, and oral
traditional and folkloric information provided by the Tribes.
Specifically, the form stated,
[T]he Kumeyaay firmly believe that their
people have lived in this region since the
“beginning.” For example, the Viejas Band
considers the Kumeyaay (referred to as
Digueno) to be the original native inhabitants
of San Diego County – having lived in this
region for more than 10,000 years. See
http://www.viejasbandofkumeyaay.org/html
/tribal_history/kumeyaay_history.html.
Similarly, the Sycuan Band states that their
ancestors have lived in the San Diego area for
12,000 years – “[t]he earliest documented
inhabitants in what is now San Diego County
are known as the San Dieguito Paleo-Indians,
dating back to about 10,000 B.C.” See
http://sycuan.com/history.html. In addition,
the local Kumeyaay “avow a deep sense of
personal and communal responsibility for the
recovery and proper reburial of all human
remains of people who predate European
settler society.” (modification in original).
The form was submitted to the Department of the Interior, but
was later withdrawn for reasons that are unclear from the
record before us.
WHITE V. UNIVERSITY OF CALIFORNIA 15
In May 2010, while the University Advisory Group was
considering the academic assessment and developing a
recommendation, the Department of the Interior promulgated
regulations pertaining to the disposition of “culturally
unidentifiable” remains and funerary objects. See 43 C.F.R.
§ 10.11. The regulations apply to “human remains previously
determined to be Native American under § 10.9 [the
regulation setting forth the inventorying process], but for
which no lineal descendant or culturally affiliated Indian tribe
or Native Hawaiian organization has been identified.”
§ 10.11(a). Culturally unidentifiable remains removed from
federal lands must be transferred to “[t]he Indian tribe or
tribes that are recognized as aboriginal to the area from which
the human remains were removed.” See § 10.11(c)(1)(ii).
In June 2010, the Repatriation Committee wrote to the
University presenting its legal position that the new
NAGPRA regulations required the transfer of the La Jolla
remains to the Repatriation Committee. According to the
Repatriation Committee,
The human remains are “Native American.”
NAGPRA is only concerned with Native
American remains. By its own actions,
UCSD has treated the human remains as
“Native American.” UCSD submitted the
human remains in its NAGPRA inventory;
submitted the inventory to the UCSD
NAGPRA Working Group and has had
several interactions with the NAGPRA
Designated Federal Officer regarding the
disposition of the human remains. This
action, coupled with meetings with KCRC
regarding the human remains, demonstrates
16 WHITE V. UNIVERSITY OF CALIFORNIA
that UCSD has and continues to treat the
human remains as “Native American.”
KCRC also points to the work of Dr. Mayes
that shows through her analysis that a tooth
from the female human remain has a
prominent shoveling, which is a characteristic
still present in modern day Native American
populations.
The Repatriation Committee concluded that, because the
La Jolla remains are “Native American” but “culturally
unidentifiable,” the new Department of the Interior
regulations required the University to transfer the La Jolla
remains to the Repatriation Committee, the group
“recognized as aboriginal to the area from which the human
remains were removed.” See 43 C.F.R. § 10.11(c)(1)(ii).
In March 2011, the University Advisory Group issued its
report and recommendations pertaining to the La Jolla
remains. Among other things, the University Advisory Group
addressed “whether the remains were ‘Native American’ as
defined by NAGPRA and case law” and noted that the
University may have “implicitly concluded that the remains
were Native American” by filing a Notice of Inventory
Completion and undergoing the process of establishing
“cultural affiliation.” Some members of the University
Advisory Group “voiced strong concern that there had not
been adequate review/analysis” of that question and “totally
opposed the idea that UCSD should proceed as though the
remains are Native American, even though they might not
be.” The University Advisory Group’s discussion pertaining
to disposition of the remains was “fractured,” and so its
recommendation “focused mostly on the issue of consultation
and not on the issue of ultimate disposition.” In its report, the
WHITE V. UNIVERSITY OF CALIFORNIA 17
University Advisory Group recommended additional
consultation, re-analysis of certain funerary objects listed
with the La Jolla remains, and revisions to the Notice of
Inventory Completion on the issue of whether the La Jolla
remains were indeed “Native American.” On the last issue,
[o]ne suggested approach for addressing the
uncertainty surrounding the matter of whether
the remains are “Native American” was to
insert language into the UCSD’s new Notice
of Inventory Completion acknowledging that
given the age of the remains, there is some
uncertainty on the matter of whether they
meet the legal definition of “Native
American,” but that the campus has decided to
proceed under the presumption that they are,
given that the campus already circulated a
previous NAGPRA inventory listing these
remains, given that the campus wishes to
make a disposition, and given that doing so
will ensure that there is adequate notice to the
public and to potentially interested tribes that
a disposition is going to be made. This
approach would avoid having to re-open an
issue that already was dealt with in the
previous inventory, but would partially
address concerns expressed by experts about
the scientific uncertainty that the remains are
“Native American,” and avoid taking a
definitive possibly precedent-setting position
in a high profile matter.
In May 2011, the University President, Mark Yudof,
wrote to the Chancellor at UCSD, Marye Anne Fox,
18 WHITE V. UNIVERSITY OF CALIFORNIA
authorizing disposition of the La Jolla remains subject to
certain conditions and recommendations. Specifically,
President Yudof requested that UCSD engage in broader
consultation efforts and revise its Notice of Inventory
Completion to reflect the “deep division of opinion within the
[University] Advisory Group, with regard to the status of the
remains as Native American under NAGPRA.”
In December 2011, the University issued its final Notice
of Inventory Completion, which stated, “The human remains
are Native American.” It further stated,
Pursuant to 43 C.F.R. 10.11(c)(1), and based
upon request from the Kumeyaay Cultural
Repatriation Committee, on behalf of The
Tribes, disposition of the human remains is to
the La Posta Band of Diegueno Mission
Indians of the La Posta Indian Reservation,
California.[5]
The Plaintiffs, who teach at the University of California-
Berkeley, University of California-Davis, and University
of California-San Diego, allege that they requested an
opportunity to study the La Jolla remains in 2009 and 2010
5
The Repatriation Committee’s policy is that the member tribe
geographically closest to the location in which the remains were found
should act as the tribe for the purposes of repatriation. According to the
Repatriation Committee, the La Posta Band is geographically closest to
the La Jolla remains. The land area of the La Posta reservation is
approximately 3500 acres, and the reservation is located in and around
Boulevard, California. The tribe has 18 members. See University of San
Diego, San Diego Native Americans–Indian Reservations in San
Diego Cou nty, http ://www.sandiego.edu/nativeamerican/
reservations.php#LaPosta (last visited July 23, 2014).
WHITE V. UNIVERSITY OF CALIFORNIA 19
but were never granted permission to do so by Chancellor
Fox. The Scientists believe that they will have opportunities
to study the La Jolla remains–which they allege hold the
highest “degree of research potential” in the “New World”–if
the University does not transfer the La Jolla remains to the La
Posta Band.
Between December 2011, when the University filed its
final Notice of Inventory Completion, and January 2012,
Plaintiffs and the University attempted to resolve outside of
court their dispute over the La Jolla remains. After those
settlement discussions failed, the Repatriation Committee
filed a complaint against the University in the U.S. District
Court for the Southern District of California seeking
declaratory relief and an injunction compelling the transfer of
the La Jolla remains to the La Posta Band.6
Afterward, the Scientists filed a Petition for Writ of
Administrative Mandamus and an initial complaint in
California state court alleging causes of action for
(1) violations of NAGPRA, (2) breach of the public trust, and
(3) violation of Plaintiffs’ First Amendment rights. On all of
their claims, the Scientists alleged that the University failed
to make a formal and adequate finding that the La Jolla
remains were “Native American” within the meaning of
NAGPRA, and that the University’s decision to transfer the
La Jolla remains pursuant to NAGPRA was therefore
arbitrary and capricious and not supported by the evidence.
The University removed the action to the United States
District Court for the Northern District of California, and the
6
After the district court denied the Repatriation Committee’s and
Defendants’ joint motion to stay the proceedings in the Southern District
of California, the parties stipulated to a dismissal without prejudice.
20 WHITE V. UNIVERSITY OF CALIFORNIA
Scientists later amended their complaint to add the
Repatriation Committee as a defendant.
The University moved to dismiss the complaint on the
ground that the district court lacked subject-matter
jurisdiction over the claim because (1) the Repatriation
Committee and the twelve Kumeyaay tribes are necessary and
indispensable parties who cannot be joined under Federal
Rule of Civil Procedure 19 because they are immune from
suit, (2) Plaintiffs lack standing under Article III, and
(3) Plaintiffs’ public trust and First Amendment claims are
unripe.
The district court granted the University’s motion to
dismiss, concluding that the Repatriation Committee is a
necessary and indispensable party under Fed R. Civ P. 19 that
could not be joined because it is immune from suit. Plaintiffs
timely appealed.
II
The first question we must decide is whether Plaintiffs
have Article III standing to bring this lawsuit. In order to
establish Article III standing, a plaintiff must show (1) a
concrete injury, (2) fairly traceable to the challenged action
of the defendant, (3) that is likely to be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992).
Plaintiff White is a professor of integrative biology at the
University of California-Berkeley. He holds Bachelor of
Science degrees in biology and anthropology from the
University of California-Riverside, along with a Master of
Arts and Ph.D in biological anthropology from the University
WHITE V. UNIVERSITY OF CALIFORNIA 21
of Michigan-Ann Arbor. His field research concentrates on
the study of ancient humans.
Plaintiff Bettinger is a Professor of Anthropology at the
University of California-Davis. He holds a Bachelor of Arts
and a Ph.D. in anthropology from the University of
California-Riverside. His scholarship and fieldwork have
focused on hunter-gatherers and the population expansions of
hunter-gatherers.
Plaintiff Schoeninger is a professor of anthropology at the
University of California-San Diego. She holds a Bachelor of
Arts in anthropology from the University of Florida, a Master
of Arts in anthropology from the University of Cincinnati,
and a Ph.D. in anthropology from the University of Michigan.
Her research centers on the subsistence strategies of early
humans.
The University does not contest that if the La Jolla
remains are repatriated, the Scientists will suffer a concrete
injury that is fairly traceable to the challenged action.
Instead, the University contends that the injury is not likely
to be redressed by a favorable decision. We therefore focus
on only the third Lujan factor.
To establish redressability under Article III, a plaintiff
“must show only that a favorable decision is likely to redress
his injury, not that a favorable decision will inevitably redress
his injury.” Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir.
1994). A showing that is “merely speculative” is insufficient.
Lujan, 504 U.S. at 561 (internal quotation marks omitted).
The Scientists seek a declaration that the La Jolla remains
are not “Native American” within the meaning of NAGPRA.
22 WHITE V. UNIVERSITY OF CALIFORNIA
In their complaint, Plaintiffs seek the opportunity to study the
La Jolla remains. In response, the University argues that,
even if the remains are not Native American, the University
would still have “unfettered discretion” to decide whether and
how to dispose of them. Therefore, the University argues, the
Scientists have not shown that they would likely be able to
study the La Jolla remains even if they obtained relief.
As Plaintiffs point out, however, the University is bound
by its “Human Remains and Cultural Items” policy. That
policy requires the University to maintain human remains for
the public trust for such purposes as “education[] and
research.” It also requires that “[r]emains . . . covered by this
policy shall normally remain accessible for research by
qualified investigators, subject to approval by the curator of
the relevant campus collection.” Taken together, those two
provisions of the policy suggest that it is “likely” that
qualified researchers would have the opportunity to study the
remains if they are not “Native American” and subject to
NAGPRA.
The University does not dispute that Plaintiffs are
qualified researchers employed by the University of
California system. And we assume that the University
follows its established policies. Thus, if the La Jolla remains
are not “Native American” and subject to NAGPRA, then the
University’s own policy suggests that Plaintiffs likely would
be able to study them. A favorable judicial decision is
therefore likely to redress Plaintiffs’ alleged injuries.
Plaintiffs have alleged sufficient facts to establish Article III
standing to maintain this lawsuit.
The University relies on Glanton v. AdvancePCS Inc.,
465 F.3d 1123, 1125 (9th Cir. 2006), but Glanton is
WHITE V. UNIVERSITY OF CALIFORNIA 23
distinguishable. The plaintiffs in Glanton claimed that the
defendant had charged the employee welfare benefit plans too
much for drugs, which caused the plans to demand higher co-
payments and contributions from participants. Therefore, the
plaintiffs contended their suit, if successful, would ultimately
decrease the plans’ co-payment or contribution requirements.
We held that this assertion of redressability was too
speculative because the plan was not bound to change its co-
payment or contribution policy and there was no indication
that it would do so. In contrast, here, the University does not
possess unfettered discretion as to the La Jolla remains
because the University’s handling of remains is subject to the
“Human Remains and Cultural Items” policy.
III
The next question we must decide is whether NAGPRA
abrogates the sovereign immunity of the Indian tribes. The
district court properly concluded that it does not. Indian
tribes are entitled to immunity from suit, particularly on
matters integral to sovereignty and self-governance. See
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55–58 (1978)
(citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)).
Congress has plenary authority, however, to “limit, modify or
eliminate the powers of local self-government which the
tribes otherwise possess.” Id. at 56. Suits against Indian
tribes are therefore barred absent congressional abrogation or
a clear waiver from the tribe itself. Okla. Tax Comm’n v.
Citizen Band of Potowatomi Indian Tribe of Okla., 498 U.S.
505, 509 (1991). “[T]o abrogate such immunity, Congress
must ‘unequivocally’ express that purpose.” Michigan v. Bay
Mills Indian Cmty., 134 S. Ct. 2024, 2031 (2014) (quoting
Santa Clara Pueblo, 436 U.S. at 58) (second modification
and second internal quotation marks omitted). Indeed, when
24 WHITE V. UNIVERSITY OF CALIFORNIA
Congress intends to abrogate tribes’ sovereign immunity, that
intent cannot be implied, but must be “unequivocally
expressed” in “explicit legislation.” Krystal Energy Co. v.
Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2004) (internal
quotation marks omitted).
NAGPRA, by its terms, does not explicitly abrogate tribal
sovereign immunity. Thus, the Act does not contain an
“unequivocal expression” of abrogation.
Plaintiffs argue that NAGPRA’s enforcement clause does
so. It confers on district courts the “jurisdiction over any
action brought by any person alleging a violation of this
[Act].” 25 U.S.C. § 3013. However, that section does not
contain any language expressly abrogating tribal sovereign
immunity. A similar argument was rejected by the Supreme
Court in Santa Clara Pueblo. In that case, the Court held that
a statutory provision providing federal courts with
“jurisdiction of any civil action authorized by law to be
commenced by any person” did not abrogate tribal sovereign
immunity. 436 U.S. at 53 & n.4, 59.
The Scientists also argue that because NAGPRA waives
sovereign immunity on the part of the United States,
NAGPRA must also have abrogated tribal sovereign
immunity because immunities of the two sovereigns are
“coextensive.” Plaintiffs misperceive the nature of tribal
sovereign immunity. “Indian tribes are “ domestic dependent
nations” that exercise “inherent sovereign authority.” Bay
Mills Indian Cmty, 134 S. Ct. at 2030 (quoting Okla. Tax
Comm’n, 498 U.S. at 509. “The tribes’ status as distinct,
independent political communities qualified to exercise
powers of self-government arises from their original tribal
sovereignty over their members rather than from any
WHITE V. UNIVERSITY OF CALIFORNIA 25
constitutional source.” Montana v. Gilham, 133 F.3d 1133,
1137 (9th Cir. 1998). Thus, “tribes retain whatever inherent
sovereignty they had as the original inhabitants of this
continent to the extent that sovereignty has not been removed
by Congress.” Id. Therefore, the sovereignty of the United
States and the Indian tribes are not “coextensive” in the sense
that the waiver of one by Congress necessarily constitutes the
waiver of the other. Nothing in a Congressional waiver of
sovereign immunity on behalf of the United States alters the
rule that abrogation of tribal sovereign immunity by Congress
must be “unequivocally expressed” in “explicit legislation.”
Krystal Energy Co., 357 F.3d at 1056.
Further, suits concerning the United States under
NAGPRA are not authorized by any specific portion of that
statute, but rather under the Administrative Procedure Act
(“APA”), which contains an express limited sovereign
immunity waiver for suits seeking non-monetary relief
against the United States. 5 U.S.C. § 702. No court has held
that the sovereign immunity waiver in the APA by the United
States also serves as a general abrogation of tribal sovereign
immunity.
Plaintiffs also make the policy argument that permitting
tribes to invoke sovereign immunity would frustrate the
purpose of NAGPRA, highlighting the district court’s
statement expressing that concern. However, when properly
asserted, sovereign immunity applies regardless of the merit
of the action or overarching policy considerations. Indeed,
the Supreme Court recently rejected such a holistic statutory
argument in Bay Mills Indian Community. 134 S. Ct. at
2033–34. And, as the Supreme Court observed, “it is
fundamentally Congress’s job, not ours, to determine whether
or how to limit tribal immunity.” Id. at 2037. Moreover, as
26 WHITE V. UNIVERSITY OF CALIFORNIA
the University points out, the United States retains the right
to bring an action against a tribe, see United States v. Yakima
Tribal Court, 806 F.2d 853, 861 (9th Cir. 1986), so that it
could act to litigate issues under NAGPRA if necessary.
For all these reasons, we conclude that the district court
properly determined that NAGPRA does not abrogate tribal
sovereign immunity.
IV
A
The district court also properly concluded that the
Repatriation Committee was entitled to tribal sovereign
immunity as an “arm of the tribe.” Tribal sovereign
immunity not only protects tribes themselves, but also
extends to arms of the tribe acting on behalf of the tribe.
Miller v. Wright, 705 F.3d 919, 923-24 (9th Cir. 2013), cert.
denied, 133 S. Ct. 2829 (2013); Cook v. AVI Casino Enters.,
Inc., 548 F.3d 718, 725 (9th Cir. 2008); see also Bay Mills
Indian Cmty, 134 S. Ct. at 2031 (describing the rule that tribal
sovereign immunity extends to suits arising from a tribe’s
commercial activities, even when they take place off Indian
lands).
In determining whether an entity is entitled to sovereign
immunity as an “arm of the tribe,” we examine several factors
including: “(1) the method of 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.”
WHITE V. UNIVERSITY OF CALIFORNIA 27
Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino
and Resort, 629 F.3d 1173, 1187 (10th Cir. 2010).
As the district court found, the Repatriation Committee
was created by resolution of each of the Tribes, with its
power derived directly from the Tribes’ sovereign authority.
The Repatriation Committee is comprised solely of tribal
members, who act on its behalf. KCRC tribal representatives
are appointed by each tribe. The process by which the
Repatriation Committee designates the particular tribe to
receive remains under NAGPRA is defined and accepted by
the Tribes. The Repatriation Committee is funded
exclusively by the Tribes. As the district court noted, the
whole purpose of the Repatriation Committee, to recover
remains and educate the public, is “core to the notion of
sovereignty.” Indeed, “preservation of tribal cultural
autonomy [and] preservation of tribal self-determination,” are
some of the central policies underlying the doctrine of tribal
sovereign immunity. Breakthrough Mgmt. Grp., Inc., 629
F.3d at 1188 (quoting Dixon v. Picopa Const. Co., 772 P.2d
1104, 1111 (Ariz. 1989)).
Given these undisputed facts, the district court properly
concluded that the Repatriation Committee was an “arm of
the tribe” for sovereign immunity purposes and, given only
speculative arguments, did not abuse its discretion in denying
the Plaintiffs further discovery on the question.
B
The district court also properly concluded that the
Repatriation Committee did not waive its sovereign immunity
by filing suit against the University in the Southern District
of California or by incorporating under California law. A
28 WHITE V. UNIVERSITY OF CALIFORNIA
voluntary waiver by a tribe must be “unequivocally
expressed.” Pit River Home & Agric. Coop. Ass’n v. United
States, 30 F.3d 1088, 1100 (9th Cir. 1994) (citing California
ex rel. Cal. Dep’t of Fish & Game v. Quechan Tribe of
Indians, 595 F.2d 1153, 1155 (9th Cir. 1979)). Waiving
immunity as to one particular issue does not operate as a
general waiver. Thus, when a tribe files suit, it submits to
jurisdiction only for purposes of adjudicating its claims, but
not other matters, even if related. Okla. Tax Comm’n,
498 U.S. at 509.
We have previously rejected the Plaintiffs’ alternative
argument that a tribe’s decision to incorporate waives its
sovereign immunity. Am. Vantage Cos., Inc. v. Table
Mountain Rancheria, 292 F.3d 1091, 1099 (9th Cir. 2002).
The district court did not err in concluding that the
Repatriation Committee had not waived its sovereign
immunity.
V
Given that NAGPRA did not abrogate tribal sovereign
immunity, and that tribal immunity extends to the
Repatriation Committee, the question is whether the Tribes
and the Repatriation Committee were necessary parties under
Federal Rule of Civil Procedure 19(a)(1) and, if so, whether
under Rule 19(b) the party is indispensable such that in equity
and good conscience the suit should be dismissed. We
conclude that the district court properly dismissed the action
pursuant to Rule 19.
WHITE V. UNIVERSITY OF CALIFORNIA 29
A
Rule 19(a) provides a two-pronged inquiry for
determining whether a party is “necessary.” Confederated
Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d
1496, 1498 (9th Cir. 1991).7 First, the court must determine
whether complete relief can be afforded if the action is
limited to the existing parties. Id.; Fed. R. Civ. P.
19(a)(1)(A). Second, the court must determine whether the
absent party has a “legally protected interest” in the subject
of the action and, if so, whether the party’s absence will
“impair or impede” the party’s ability to protect that interest
or will leave an existing party subject to multiple,
inconsistent legal obligations with respect to that interest. Id.
If the answer to either of those questions is affirmative, then
the party is necessary and “must be joined.” Fed. R. Civ. P.
19(a)(1). The inquiry under Rule 19(a) “is a practical one and
7
FRCP 19(a) provides, in full,
A person who is subject to service of process and
whose joinder will not deprive the court of subject-
matter jurisdiction must be joined if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject
of the action and is so situated that disposing of the
action in the person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
30 WHITE V. UNIVERSITY OF CALIFORNIA
fact specific.” Makah Indian Tribe v. Verity, 910 F.2d 555,
558 (9th Cir. 1990) (citing Provident Tradesmens Bank &
Trust Co. v. Patterson, 390 U.S. 102, 118–19 (1968)).
There is no doubt that the Tribes and the Repatriation
Committee have a legally protected interest within the
meaning of Rule 19. Indeed, the language of the rule
contemplates that a party need only have a “claim” to an
interest. Fed. R. Civ. P. 19(a)(2). Rule 19 is designed to
protect “a party’s right to be heard and to participate in
adjudication of a claimed interest, even if the dispute is
ultimately resolved to the detriment of that party.” Shermoen
v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992).
Here, the Repatriation Committee has made formal claims
to the La Jolla remains on behalf of the Kumeyaay Tribes.
The Heritage Commission, the California state agency
charged with making the determination, identified the
Repatriation Committee as the “most likely descendant” for
the La Jolla remains. The University has filed a Notice of
Inventory Completion with the Department of the Interior
indicating that the Tribes are the designated recipients. The
Tribes and the Repatriation Committee unquestionably have
a sufficient claim to a legally protected interest to satisfy Rule
19. Indeed, their claim is at the heart of the dispute.
The Scientists argue that the Tribes and the Repatriation
Committee do not have a “legally protected interest” because
the La Jolla remains have not been established to be “Native
American” within the meaning of NAGPRA and, in fact, are
not. However, that argument misses the point of the Rule
19(a) inquiry. The question is whether the Tribes and the
Repatriation Committee have a claim that is not “patently
frivolous.” Shermoen, 982 F.2d at 1318.
WHITE V. UNIVERSITY OF CALIFORNIA 31
The interest of the Tribes and the Repatriation Committee
would also unquestionably be “impaired or impeded” if the
suit were allowed to proceed without the Tribes or the
Repatriation Committee as parties. If the Scientists prevail in
their claim that the La Jolla remains are not “Native
American” within the meaning of NAGPRA and succeed in
their efforts to enjoin transfer of the remains to the La Posta
Band, then the claims of the Tribes and the Repatriation
Committee will be extinguished without the opportunity for
them to be heard.
Contrary to the Plaintiffs’ assertions, the University
cannot sufficiently represent the interests of the Tribes or
Repatriation Committee. At present, their interests are
aligned. There is some reason to believe that they will not
necessarily remain aligned. However, as the district court
pointed out, the University “has a broad obligation to serve
the interests of the people of California, rather than any
particular subset, such as the people of the Kumeyaay tribes.”
Thus, the different motivations of the two parties could lead
to a later divergence of interests. For example, if a court were
to determine that the La Jolla remains should not be
transferred to the Kumeyaay under NAGPRA, it is
questionable whether–perhaps even unlikely that–the
University and the Kumeyaay would pursue the same next
course of action.
Thus, the district court properly concluded that the Tribes
and the Repatriation Committee were necessary parties within
the meaning of Rule 19(a).
32 WHITE V. UNIVERSITY OF CALIFORNIA
B
The district court also properly determined that the Tribes
and the Repatriation Committee were indispensable parties
under Fed. R. Civ. P. 19(b). There are four factors for
determining whether a party is indispensable:
(1) the extent to which a judgment rendered in
the person’s absence might prejudice that
person or the existing parties;
(2) the extent to which any prejudice could be
lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the
person’s absence would be adequate; and
(4) whether the plaintiff would have an
adequate remedy if the action were dismissed
for nonjoinder.
Fed. R. Civ. P. 19(b).
Obviously, a judgment in favor of the Scientists would
prejudice the Tribes and the Repatriation Committee. It
would declare that they had no rights to the La Jolla remains
and prevent transfer of the remains to the La Posta band.
Because the Tribes and the Repatriation Committee seek
WHITE V. UNIVERSITY OF CALIFORNIA 33
custody, there is no provision that could be included in such
a judgment that would protect their interests or serve to lessen
the effect. The Plaintiffs claim that the University can protect
the interest of the Tribes and the Repatriation Committee;
however, as we have discussed, their interests are distinct
and, although they are aligned at present, their interests could
quickly diverge. A judgment rendered in the absence of the
Tribes and the Repatriation Committee would be inadequate
because, as the district court noted, the necessary parties
would not be included and an injunction would not be
effective against absent parties. The fourth factor strongly
favors the plaintiffs, who would be prevented from obtaining
redress for their claims.
Although Rule 19(b) contemplates balancing the factors,
“when the necessary party is immune from suit, there may be
‘very little need for balancing Rule 19(b) factors because
immunity itself may be viewed as the compelling factor.’”
Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir.
1994) (quoting Confederated Tribes, 928 F.2d at 1499). As
the district court correctly noted, “virtually all the cases to
consider the question appear to dismiss under Rule 19,
regardless of whether a remedy is available, if the absent
parties are Indian tribes invested with sovereign immunity.”
(citing Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015
(9th Cir. 2002); Dawavendewa v. Salt River Project Agric.
Improvement & Power Dist., 276 F.3d 1150 (9th Cir. 2002);
Manybeads v. United States, 209 F.3d 1164 (9th Cir. 2000);
Clinton v. Babbit, 180 F.3d 1081 (9th Cir. 1999); Kescoli v.
Babbit, 101 F.3d 1304 (9th Cir. 1996); McClendon v. United
States, 885 F.2d 627 (9th Cir. 1989).)
34 WHITE V. UNIVERSITY OF CALIFORNIA
Given this wall of circuit authority, the district court
properly concluded that the Tribes and the Repatriation
Committee were indispensable parties under Rule 19(b).
C
The district court correctly concluded that the “public
rights” exception to Rule 19 did not apply. The Supreme
Court has explained that “[i]n a proceeding . . . narrowly
restricted to the protection and enforcement of public rights,
there is little scope or need for the traditional rules governing
the joinder of parties in litigation determining private rights.”
Nat’l Licorice Co. v. Nat’l Labor Relations Board, 309 U.S.
350, 363 (1940). In order for the public rights exception to
apply, (1) “the litigation must transcend the private interests
of the litigants and seek to vindicate a public right” and
(2) “although the litigation may adversely affect the absent
parties’ interests, the litigation must not destroy the legal
entitlements of the absent parties.” Kescoli v Babbitt,
101 F.3d 1304, 1311 (9th Cir. 1996) (internal quotation marks
omitted). As the district court properly observed, the public
rights exception cannot apply here because the rights of the
Tribes and the Repatriation Committee will be extinguished
if the Plaintiffs prevail in their claims.
VI
In sum, as qualified scientists, the Plaintiffs have standing
to assert the claims. The district court properly concluded
that NAGPRA did not abrogate the Tribes’ sovereign
immunity; that, as an arm of the Tribes, the Repatriation
Committee was entitled to sovereign immunity, and had not
waived it by filing a separate lawsuit or by incorporating in
California; that the Tribes and the Repatriation Committee
WHITE V. UNIVERSITY OF CALIFORNIA 35
were necessary and indispensable parties under Fed.R.Civ. P.
19; and that the public interest exception to Rule 19 did not
apply. Therefore, the district court did not err by dismissing
the action.
AFFIRMED.
MURGUIA, Circuit Judge, 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’ dispute—which, as I see it, is whether
the University properly determined that the La Jolla remains
36 WHITE V. UNIVERSITY OF CALIFORNIA
are “Native American” within the meaning of NAGPRA and
therefore whether, as a threshold matter, NAGPRA applies
here at all. Because I read those precedents to compel the
conclusion that the KCRC is neither necessary nor
indispensable to the resolution of that particular question, I
respectfully dissent.
Plaintiffs petitioned for a writ of administrative
mandamus under California state law directing the University
“to make a formal determination whether or not the La Jolla
Skeletons are ‘Native American’ within the meaning of
NAGPRA.” In the alternative, Plaintiffs sought declaratory
and injunctive relief, likewise requesting that the court
“declar[e] . . . that the La Jolla Skeletons are not ‘Native
American.’ ” The parties’ dispute is therefore limited to
the correctness of the University’s administrative
determination—it is not, as it was framed in the district court,
a “property dispute, in which the parties assert conflicting
ownership interests” in the La Jolla remains. In other words,
this case is not about whether NAGPRA compels repatriation;
instead, it is about whether NAGPRA, which concerns only
Native American remains, applies in the first place.
Rule 19(a)(1)(B)(i) makes an absent party “necessary” if
the party “claims an interest relating to the subject of the
action and is so situated that disposing of the action in the
[party’s] absence may . . . as a practical matter impair or
impede the [party’s] ability to protect the interest.” Fed. R.
Civ. P. 19(a)(1)(B)(i). Although the party’s claimed interest
must be more than speculative, Dawavendewa v. Salt River
Project Agric. Improvement & Power Dist., 276 F.3d 1150,
1155 n.5 (9th Cir. 2002), it need merely be a “claim”—that is,
“[j]ust adjudication of claims requires that courts protect a
party’s right to be heard and to participate in adjudication of
WHITE V. UNIVERSITY OF CALIFORNIA 37
a claimed interest, even if the dispute is ultimately resolved
to the detriment of that party.” Shermoen v. United States,
982 F.2d 1312, 1317 (9th Cir. 1992).
In this case, Defendants characterize the tribes as
“paradigms of ‘necessary parties’ ” because the KCRC and
the tribes have a nonfrivolous claim to—and therefore a
“legally protected interest” in—the La Jolla remains.
Defendants contend that the tribes’ interest would be
impaired or impeded if the lawsuit were to proceed in their
absence because the tribes’ “claim to the ownership and
control of the Remains lies at the very core of” the parties’
dispute. What is more, they allege, the University cannot
adequately represent the tribes’ interest in this action because
of the University’s “broad obligation to serve the interests of
the people of California, rather than any particular subset,
such as the people of the Kumeyaay tribes.”
As I see it, Defendants’ argument fails first on its
premise. Contrary to the way in which the tribes frame it, this
is not a property dispute over the La Jolla remains—indeed,
the University has already found that the remains are
culturally unidentifiable because there is “[s]imply . . . not a
preponderance of evidence to support an affirmation of
cultural identification or affiliation with any modern group.”
Neither party suggests any problem with respect to the
University’s procedural or substantive determination
surrounding cultural affiliation, nor does either party take
issue with the Department of the Interior’s 2010 regulations
requiring culturally unidentifiable human remains to be
transferred to the tribe or tribes “recognized as aboriginal to
the area from which the human remains were removed.” See
43 C.F.R. § 10.11. Thus, this action will not resolve whether,
under NAGPRA, the Kumeyaay tribes are entitled to
38 WHITE V. UNIVERSITY OF CALIFORNIA
“ownership or control” of the La Jolla remains—assuming
NAGPRA applies, that question has already been resolved.1
Plaintiffs instead take issue with the procedures
underyling the University’s determination that the remains
are “Native American” as that term is defined under
NAGPRA. As the tribes readily concede, “NAGPRA is only
concerned with Native American remains.” So, to the extent
that Plaintiffs’ claims are limited to that single administrative
determination, any “interest” the tribes have in this litigation
is identical to the interest of any other party: all parties “have
an equal interest in an administrative process that is lawful.”
Makah Indian Tribe, 910 F.2d at 559.2 The KCRC’s interest
is no different from the generalized, nonspecific interest of
any other “presently existing tribe, people, or culture.”
Bonnichsen v. United States, 367 F.3d 864, 875 (9th Cir.
2004).
To be sure, as the majority correctly notes, for the
purposes of Rule 19, the tribes need only assert a “claim” to
an interest, not an actual or vested one. See Fed. R. Civ. P.
19(a) (defining a “required” party as one who “claims an
interest relating to the subject of the action” (emphasis
added)). Here, the tribes would be entitled to compel
repatriation of the La Jolla remains if they are in fact “Native
1
The majority similarly misstates the relief that Plaintiffs seek.
According to the majority, a judgment in Plaintiffs’ favor would “declare
that [the tribes] had no right to the La Jolla remains and prevent transfer
of the La Jolla remains to the La Posta Band.” That is not so. A judgment
in Plaintiffs’ favor would merely declare that NAGPRA does not compel
repatriation.
2
Generally, there is no legally protected interest in an agency’s
procedures. See Makah Indian Tribe, 910 F.2d at 558.
WHITE V. UNIVERSITY OF CALIFORNIA 39
American.” Thus, the tribes have, at the very least, a
nonfrivolous “claim” to an interest in the subject matter of
this dispute.
But the nature of Plaintiffs’ claim is not such that, “as a
practical matter,” proceeding with this litigation in the tribes’
absence would “impair or impede the [tribes’] ability to
protect” that interest. Fed. R. Civ. P. 19(a)(1)(B)(i). We
have previously held that the level of impairment resulting
from a party’s absence “may be minimized if the absent party
is adequately represented in the suit.” Makah Indian Tribe,
910 F.2d at 558. Because the KCRC’s interest in the process
leading to the University’s administrative determination that
the La Jolla remains are “Native American” is no different
from any other party’s, see id. at 559, the University, as an
existing party, is in a position to adequately protect the
interest of the KCRC and the tribes.
In determining whether an existing party can adequately
represent the interests of an absent party, we are to consider
three factors: (1) whether the interests of the existing party
“are such that it will undoubtedly make all of the absent
party’s arguments,” (2) whether the existing party “is capable
of and willing to make such arguments,” and (3) “whether the
absent party would offer any necessary element to the
proceedings that the present party would neglect.” Shermoen,
982 F.2d at 1318 (stating the factors that courts consider
under Rule 24(a) in the context of determining adequacy
under Rule 19(a)).
The University’s interest in this litigation is almost
identical to that of the tribes: the interest in properly and
lawfully determining the “Native American” status of the La
Jolla remains. Because that is so, it is difficult to imagine any
40 WHITE V. UNIVERSITY OF CALIFORNIA
argument the KCRC might make that the University has not
already made and will not ultimately make if the action
proceeds. Either the University’s determination that the
remains are “Native American” was arbitrary and capricious
or it was not—in any event, the evidence on which that
determination was based was evidence that the KCRC itself
provided. In that sense, practically every argument the
KCRC could make is an argument that the University will
likewise offer to defend its determination. The first factor of
the Shermoen adequacy test therefore suggests that the tribes
will adequately be represented by the University.
The second and third Shermoen factors likewise favor a
finding that the tribes will adequately be represented. With
respect to the second, there is no suggestion in the record that
the University is incapable of making or unwilling to make
the arguments that the KCRC would likely make. And as to
the third, no party identifies a “necessary element” of this
lawsuit that the tribes could offer but that the University
would neglect. Applying Shermoen, I would accordingly
conclude that the KCRC is not “so situated that disposing of
the action in [its] absence may . . . as a practical matter impair
or impede [its] ability to protect” its claimed interest in this
litigation. Fed. R. Civ. P. 19(a)(1)(B)(i).
Nor is the KCRC an indispensable party. If an absent
party is necessary and cannot be joined,3 then the court must
3
I agree with the majority that, because NAGPRA does not abrogate the
sovereign immunity of the Indian tribes, the KCRC and the tribes are
immune from suit and therefore “cannot be joined” for the purposes of
Rule 19(b). See Confederated Tribes of Chehalis Indian Reservation v.
Lujan, 928 F.2d 1496, 1499 (9th Cir. 1991). Thus, because the district
court concluded that the KCRC was a necessary party under Rule 19(a),
it properly reached the “indispensability” inquiry under Rule 19(b).
WHITE V. UNIVERSITY OF CALIFORNIA 41
determine whether “in equity and good conscience, the action
should proceed among the existing parties or should be
dismissed.” Fed. R. Civ. P. 19(b). That determination
requires a four-part inquiry, which is set forth under the Rule:
When Joinder Is Not Feasible. If a person
who is required to be joined if feasible cannot
be joined, the court must determine whether,
in equity and good conscience, the action
should proceed among the existing parties or
should be dismissed. The factors for the court
to consider include:
(1) the extent to which a judgment rendered in
the person’s absence might prejudice that
person or the existing parties;
(2) the extent to which any prejudice could be
lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the
person’s absence would be adequate; and
42 WHITE V. UNIVERSITY OF CALIFORNIA
(4) whether the plaintiff would have an
adequate remedy if the action were dismissed
for nonjoinder.
Fed. R. Civ. P. 19(b).4
The first factor, prejudice, is essentially the same as the
“necessary” inquiry under Rule 19(a). Confederated Tribes,
928 F.2d at 1499. As I explained above, because the tribes’
interests in this litigation are no different than the interests of
any other party, and because those interests can adequately be
represented by the University, I would conclude that the first
factor favors proceeding with the litigation in the tribes’
absence.
The remaining factors similarly favor proceeding with the
litigation. On the second, the extent to which prejudice could
be lessened or avoided, I see no partial or compromise
remedy that would lessen potential prejudice, but because of
my conclusion on the first factor, I would conclude that the
second factor likewise favors proceeding. See Fed. R. Civ. P.
19(b)(2). On the third, whether a judgment in the KCRC’s
absence would be adequate, again, the inquiry in this case is
limited to the correctness of the University’s determination
4
The majority suggests that there may be “little need for balancing Rule
19(b) factors” in cases in which the absent party is entitled to immunity
from suit. Indeed, a few of our sister circuits have concluded as much.
See, e.g., Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 1491, 1496 (D.C.
Cir. 1995); Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 549
(2d Cir. 1991); Enterprise Mgmt. Consultants, Inc. v. United States,
883 F.2d 890 (10th Cir. 1988). “Cognizant of these out-of-circuit
decisions, the Ninth Circuit has, nonetheless, consistently applied the four
part balancing test [under Rule 19(b)] to determine whether Indian tribes
are indispensable parties.” Dawavendewa, 276 F.3d at 1162.
WHITE V. UNIVERSITY OF CALIFORNIA 43
that the La Jolla remains are “Native American”—a
determination in which the KCRC has no specific, legally
protected interest. Thus, nothing suggests that a judgment
rendered in KCRC’s absence would be inadequate. See Fed.
R. Civ. P. 19(b)(3); Philippines v. Pimentel, 553 U.S. 851,
870 (2008) (“[A]dequacy refers to the ‘public stake in settling
disputes, whenever possible.’ ”). And finally, on the fourth
factor, it seems clear, in light of the sovereign immunity of
the Indian tribes, that Plaintiffs have no adequate remedy if
this lawsuit is dismissed. See Fed. R. Civ. P. 19(b)(4).
Because, on balance, the factors we generally consider under
Rule 19(b) disfavor dismissal, I would conclude that the
KCRC is not an indispensable party in whose absence this
lawsuit could not proceed.
Although the majority suggests otherwise, my conclusion
in this respect is not inconsistent with a “wall of circuit
authority.” In each of the cases the majority and the district
court cite to support that assertion, the absent tribe was a
party or signatory to a contract sought to be enforced. See
Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir.
2002) (lawsuit seeking termination of gaming compacts to
which the tribe was a party and that would otherwise
automatically renew); Dawavendewa, 276 F.3d 1150 (9th Cir.
2002) (lawsuit challenging a provision of a lease agreement
to which the tribe was a signatory); Manybeads v. United
States, 209 F.3d 1164 (9th Cir. 2002) (lawsuit challenging
settlement agreement to which the tribe was a party); Clinton
v. Babbitt, 180 F.3d 1081 (9th Cir. 1999) (same); Kescoli v.
Babbitt, 101 F.3d 1304 (9th Cir. 1996) (same); McClendon v.
United States, 885 F.2d 627 (9th Cir. 1989) (lawsuit seeking
to enforce a lease agreement to which the tribe was a party).
As we have observed, “[N]o procedural principle is more
deeply imbedded in the common law than that, in an action to
44 WHITE V. UNIVERSITY OF CALIFORNIA
set aside a lease or a contract, all parties who may be affected
by the determination of the action are indispensable.”
Dawavendewa, 276 F.3d at 1156. This is not such a case,
however; I therefore disagree that the reasoning or outcomes
of those cases compel the same conclusion here.
Plaintiffs’ complaint takes issue with a specific, threshold
question: whether the University properly determined that the
La Jolla remains are “Native American” within the meaning
of NAGPRA and therefore whether, as a threshold matter,
NAGPRA applies at all. I would conclude that the KCRC is
neither necessary nor indispensable to the resolution of that
question and that this lawsuit may therefore proceed in its
absence. I would not reach the question whether the public
rights exception to Rule 19 applies in this case, and I would
instead reverse the district court’s judgment and remand this
case for further proceedings.