Members of the Kumeyaay Tribes of San Diego are enjoying a court victory in the case of White vs. University of California. However, the battle may be far from over as the plaintiffs plan to appeal.
“In regard to the Ninth Circuit opinion in the case of White v. University of California, we are evaluating our options, but we intend to pursue this matter all the way to the United States Supreme Court if necessary,” said Michael Reedy of McManus Faulkner, the law firm representing the plaintiffs.
“The University failed to follow proper administrative and legal procedures in characterizing the La Jolla remains as Native American,” he added.
On August 27, the Ninth Circuit refused to overturn the repatriation of 9,000 year-old skeletons to the Kumeyaay Tribes.
According to Courthouse News Service, the skeletons were unearthed in 1976 during an undergraduate excavation class led by Professor Gail Kennedy at the Chancellor’s House at the University of California San Diego in La Jolla, California.
The Kumeyaay Nation tried to protect the skeletons for more than 20 years. In the intervening time, the skeletons have been stored at the Smithsonian Institution, San Diego Museum of Man, the National Museum of Natural History and UCLA.
The school agreed to return the skeletons however, the three scientists who wanted to study the remains sued the University in San Francisco court to prevent the university from giving them to the Kumeyaay Nation.
“Scientific evidence ‘provides no support for a finding of cultural affiliation between [the remains] and the Kumeyaay tribe,’ let alone to the 18-member La Posta Band to whom the remains would be repatriated,” said Reedy.
Two scientists who analyzed the La Jolla remains concluded they were not Native American. There was a deep division within the University's Advisory Group regarding whether the La Jolla remains were Native American. That administrative dispute, which was never resolved, should have been resolved under the Native American Graves Protection and Repatriation Act (NAGPRA), he added.
On the contrary, Dorothy Alther (Oglala Sioux) from the California Indian Legal Services said her clients are pleased with the court’s decision. However, they know the battle is not quite over.Alther has represented and worked closely with the Kumeyaay Cultural Repatriation Committee (KCRC) since the very beginning.
“We understand we won the decision and now the remains are going to be transferred, but we are going to have to wait several more months to see what transpires with the plaintiffs,” Alther said.
The next step is for the plaintiffs to ask for a rehearing or they can ask for an en banc hearing which is where they request all of the Ninth Circuit court judges to basically hear the case again, Alther said.
If the plaintiffs are denied then they can file a writ of certiorari to the Supreme Court but Alther doubts that the Supreme Court would take the case.
“We are talking months of delay for each of those actions to have a court decision,” she said. “In this case that just came down, we waited almost nine months for that decision to get issued.”
Ultimately, if the decision holds, no action is taken or the rehearing is denied, then KCRC will be working with UCSD to complete the necessary administrative steps needed to have the remains transferred to them, Alther added.
Alther couldn’t tell ICTMN what the Kumeyaay Nation and KCRC plan to do with the remains, “the tribes will have to make that decision for themselves,” she said.
Both parties referred ICTMN to their lawyers for this interview.
In addition, the La Jolla remains hold the highest degree of research potential in the New World, according to Reedy. He said our understanding about the human population on this continent would be enhanced by further study of the remains.
“An article in last month's Science magazine discussed genetic evidence showing that a single Paleo-Eskimo metapopulation lived in near-isolation in the Arctic for over 4,000 years, before vanishing 700 years ago,” Reedy said. “That populace migrated into the Americas independent of both Native American and Inuit expansions.”
“We still have much to learn about human migration to North and South America, and need to preserve our ability to study these people and their history. We will make every effort to do so,” he said.