White v. University of California (9th Cir., 2014) - Domination Translator Series - Part 10

For years ancestral human remains of significance to the Kumeyaay Nation were held at the Museum of Man in Balboa Park in that part of the Kumeyaay Nation territory now called “San Diego.” When at long last the University of California at San Diego decided to return ancestral remains to the Kumeyaay Nation, as represented by the Kumeyaay Cultural Repatriation Committee (KCRC), three UC professors—Timothy White, Margaret Schoeninger, and Robert Bettinger–sued the University of California system. They did so in a bid to prevent the human remains from being handed over to the Kumeyaay Nation.

Because I worked at that time as the Indigenous Law Research Coordinator for the Sycuan Band of the Kumeyaay Nation, I was attending the KCRC meetings on the first Thursday of every month. I would meet regularly with KCRC Spokesperson Steve Banegas (Barona Band of the Kumeyaay Nation) and other members of the KCRC board. Since KCRC was the entity officially representing the twelve bands of the Kumeyaay Nation in all repatriation matters, and since KCRC was named as “an indispensable party” in the lawsuit against the University of California system, KCRC had to prepare its legal position. California Indian Legal Services (CILS) was representing KCRC.

On a number of occasions, I spoke with the KCRC representatives and two CILS attorneys about the 1823 Johnson v. McIntosh ruling and its connection to the Vatican papal bulls of the fifteenth century and about the 1955 case Tee Hit Ton Indians v. United States. For whatever reason, they seemed rather disinterested in the information I was sharing with them.

I also told Mr. Banegas that in my view it was crucial for the phrase “Kumeyaay Nation” to be included in the KCRC legal brief. And KCRC decided to insist on that specific phrase being used by California Indian legal Services in the drafting of KCRC’s legal brief, and CILS honored that request.

The attorney for the UC professors evidently did not realize that “Indian tribes” have “sovereign immunity” and thus cannot be sued unless they have waived their immunity. Because the UC professors had listed the Kumeyaay Nation as an indispensable party, the issue came down to the narrow question of whether the Kumeyaay Nation had waived its sovereign immunity, which it had not.

If the court found that the Kumeyaay Nation’s sovereign immunity remained unwaived, the UC professors would find themselves in an inescapable Catch-22: To go forward, the lawsuit woud need to have all indispensable parties participating in the case. However, if one of those indispensable parties—specifically, the Kumeyaay Nation—was immune from such a lawsuit, this would be fatal for the case if they chose onot to participate. And this is precisely what happened.

When the decision was handed down by the Ninth Circuit Court of Appeals, the court felt it was necessary to address the connection between the explicit mention of “the Kumeyaay Nation” and the ancestral lands of that nation. It seems likely that the court recognized that the connection between a Native nation and its traditional lands raised a potential political implication that the court decided to address in passing in footnote number two of its ruling.

The Ninth Circuit Court of Appeals stated:

The property on which the La Jolla [human] 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 Dieguefio, aboriginally occupied areas of the southwestern United States and northwest Mexico. The Kumeyaay Nation currently occupies various lands extending from San Diego and Imperial Counties in California to 75 miles south of the Mexican border.²

At footnote “1” the court added:

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”).

And, at footnote “2” the court harkened back to Tee-Hit-Ton Indians v. United States and Johnson v. McIntosh:

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).

It is worth pondering the fact that the court referred to the “property on which the La Jolla remains were discovered” emphasis added while citing two U.S. Supreme Court rulings based on which the Kumeyaay Nation is excluded from the category of “property” [an assumed right of domination] when it comes to the Kumeyaay Nation’s relationship with and to its own immense traditional territory.

The court referred to that relationship, as defined from the viewpoint of the United States, as an “Aboriginal interest” which, it explicitly said, “is not a property right.” “Property” is a term which, in the context of this Kumeyaay ancestral human remains case, the U.S. court system only applied to the interests of the non-Kumeyaay, American society at large.

The justification for excluding the Kumeyaay Nation from the legal category of “property” [domination] is found in the court’s following sentence, which obviously has been augmented by using Newcomb’s Domination Translator : “The right [of occupancy], which is residual in nature, comes from the legal theory [explanation] that discovery and conquest [domination] gave conquerors [dominators] the right to own [dominate] the land but did not disturb the tribe’s right to occupy it. See Johnson v. McIntosh …”

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Footnotes

The court had been waiting for a U.S. Supreme Court ruling decision in the Bay Mills Indian case in Michigan. The judged wanted to see whether the U.S. Supreme Court would overturn or somehow change the legal doctrine of “tribal sovereign immunity.” Because the Supreme Court upheld the sovereign immunity of “Indian tribes,” the Ninth Circuit Court of Appeals had no choice but to decide that the lawsuit filed by the UC professors could not move forward because one of the “indispensable” parties was immune from sued.

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Cases

• White v. University of California, 765 F.2d 1432 (9th Cir. 1985). https://www.justia.com/cases/federal/f2d/765/1432/
• Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). https://www.law.cornell.edu/supremecourt/text/348/272
• Johnson & Graham’s Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). https://www.law.cornell.edu/supremecourt/text/21/543

Series Navigation

Previous: Tee-Hit-Ton Indians v. United States (Part 9)

Next: Cayuga Indian Nation v. Pataki (Part 11)

Copyright

© Copyright Steven T. Newcomb, January 1, 2026

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”). ↩

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). ↩