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Rosales v. United States

November 28, 2007

WALTER J. ROSALES, ESTATE OF HELEN CUERO, ESTATE OF DEAL ROSALES, KAREN TOGGERY, ESTATE OF MARIE TOGGERY, ESTATE OF MATTHEW TINEJERO TOGGERY, JAMUL INDIAN VILLAGE PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE INTERIOR, DIRK KEMPTHORNE, BUREAU OF INDIAN AFFAIRS, CARL ARTMAN, ASSISTANT SECRETARY OF INDIAN AFFAIRS, IN HIS OFFICIAL CAPACITY, NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION COMMITTEE, SHERRY HUTT, NATIONAL NAGPRA PROGRAM MANAGER, IN HER OFFICIAL CAPACITY, AND TIM MCKEOWN, NATIONAL NAGPRA PROGRAM DESIGNATED FEDERAL OFFICER AND REGULATIONS COORDINATOR, IN HIS OFFICIAL CAPACITY DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING MOTION TO DISMISS THE FIRST AMENDED AND COMPLAINT UNDER 12(b)(1) WITH PREJUDICE [Doc. No. 19]

Presently before the Court is defendants' motion to dismiss plaintiffs' first amended complaint with prejudice. (Doc. No. 19.) For the foregoing reasons, the Court grants defendants' motion.

BACKGROUND

Factual Background

Plaintiffs Walter Rosales and Karen Toggery are individual Native Americans suing to enforce the Native American Graves Protection and Repatriation Act ("NAGPRA"). (First Amended Complaint ("FAC"), Doc. No. 2, ¶¶ 1 & 2.) Rosales and Toggery also represent the estates of four individuals. (Id. ¶¶ 3 & 4.) While the complaint names the Jamul Indian Village, a federally-recognized Indian tribe, as a plaintiff, the Tribe filed an amicus brief asserting plaintiffs do not have the authority to bring this action on its behalf. (Id. ¶ 2; Amicus Brief, Doc. No. 15.) For clarity and consistency with the decisions of other federal courts regarding these parties, the amicus Jamul Indian Village will be referred to as the Tribe.*fn1 All other plaintiffs will be referred to as "plaintiffs."

Defendants are the United States, the Bureau of Indian Affairs of the Department of the Interior, Carl Artman, the Assistant Secretary of Indian Affairs, in his official capacity, the Native American Graves Protection and Repatriation Review Committee, the National NAGPRA Program, Sherry Hutt, the National NAGPRA Program Manager, in her official capacity, and Tim McKeown, the National NAGPRA Program's Designated Federal Officer and Regulations Coordinator, in his official capacity (hereinafter "defendants").

Plaintiffs' Previous Cases

This case arises from a dispute over the leadership of the Tribe which has involved federal, state and tribal courts for more than ten years. In 1994, plaintiffs attempted a recall election of tribal leadership. Rosales v. United States, 477 F. Supp. 2d 119, 122-23 (D.D.C. 2007). Since that time, two factions--one represented by plaintiffs and the other constituting the amicus Tribe--have asserted control over the government of the Tribe. Id. at 123. Plaintiffs contend the Bureau of Indian Affairs ("BIA") improperly recognized the opposing faction's leadership. (FAC ¶ 65.) Plaintiffs appealed the BIA's decision to the District Court for the District of Columbia in Rosales v. United States, No. 03-cv-117. The Honorable Gladys Kessler granted summary judgment against plaintiffs in that action on March 8, 2007. The court found plaintiffs are not authorized to represent the Tribe. Rosales, 477 F. Supp. 2d at 122, n.1. The court further held the BIA did not act improperly in upholding the opposing faction's elections against plaintiffs' challenges. Id. at 126-30. Plaintiffs have appealed that ruling. (Amicus Brief at 9.)

Plaintiffs were previously before this Court over a dispute with the Tribe in Rosales v. United States, No. 01-cv-591. In that case, plaintiffs sought a "a declaration of their entitlement" to a parcel of land then called 597-080-01 but now referred to as Parcel 04. (FAC Ex. D; Defendants' Memorandum in support of Motion, Ex. K at 1.) The Court granted summary judgment in favor of defendants on February 14, 2002, holding Parcel 04 was conveyed to the United States in trust for the Tribe, not for the individual plaintiffs. (Memo. ISO Motion, Ex. F at 13.)

Plaintiffs appealed and the Ninth Circuit Court of Appeals affirmed on the basis that the Jamul Indian Village was a necessary and indispensable party pursuant to Rule 19 of the Federal Rules of Civil Procedure. Rosales v. United States, 73 F. App'x. 913, 914 (9th Cir. 2003).

Plaintiffs have also filed cases in other forums related to their challenges to the Tribe's leadership.*fn2

The Instant Case

Plaintiffs bring this action against the federal government for violations of NAGPRA.*fn3

Plaintiffs request the Court stop construction activities on three pieces of land known as Parcels 04, 05, and 06. Plaintiffs allege they know human remains and associated items are located on those parcels. (FAC ¶¶ 7, 62-64.) Plaintiffs allege "grading, excavation, demolition, operation of heavy equipment, moving dirt and/or gravel, and other construction activities" are presently occurring on the land, "thereby mutilating, disinterring, removing, excavating, and otherwise disturbing the Native Americans [sic] human remains" and associated items. (Id. ¶ 68.) Plaintiffs and defendants agree Parcel 05 is tribal land for the purposes of NAGPRA and title to Parcel 06 is held by the Catholic Diocese.

Plaintiffs allege Parcel 04 is federal land, not tribal land, under NAGPRA. In 1978, the land was granted "to the United States of America in trust for such Jamul Indians of one-half degree or more Indian blood as the Secretary of the Interior may designate." (FAC Ex. D.) Plaintiffs dispute this Court's previous interpretation of the 1978 deed and argue the land is held in trust for individual Indians, and thus "federal," rather than "tribal," land under NAGPRA. Because the grant was made prior to the Tribe's organization, plaintiffs allege the Tribe has never asserted jurisdiction over Parcel 04, and the parcel is not under the jurisdiction of a tribal court.

Plaintiffs claim the United States violated NAGPRA and its fiduciary duty of trust by failing to cease all construction activity upon inadvertently discovering human remains; failing to provide notice to lineal descendants of the presence of remains; failing to provide a written plan of action; and failing to repatriate the remains to plaintiffs. (FAC ¶¶ 76 & 83.) Plaintiffs also allege violations of California Health and Safety Code Sections 7050.5 and 7052 (relating to removal of human remains) and California Public Resources Code Sections 5097-99 (relating to permitting on archaeological sites). (FAC ¶¶ 85 & 91.)

Procedural Background

Plaintiffs originally filed their complaint in this case on January 19, 2007, in the United States District Court for the District of Columbia. (Doc. No. 1, Part 1, p. 8.) However, on March 19, 2007, the Honorable Rosemary M. Collyer granted defendants' motion to transfer the case to the Southern District of California. Rosales v. United States, 477 F. Supp. 2d 213 (D.D.C. 2007).

On April 10, 2007, plaintiffs filed a first amended complaint. (Doc. No. 2.) On June 11, 2007, defendants filed a motion to dismiss the first amended complaint in its entirety. (Doc. No. 19.) The Tribe filed an amicus brief ...


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