Law | Opinion

Steven Newcomb: NAGPRA case affirms conquest of Native people

Steven Newcomb of the Indigenous Law Institute. Photo from Finding the Missing Link

Steven Newcomb dissects the 9th Circuit Court of Appeals decision in White v. University of California:
Toward the opening of its decision, the panel for the Ninth Circuit Court of Appeals said: “The Kumeyaay, also known as the Ipai, Tipai, or Diegueño, aboriginally occupied areas of the south-western United States and northwest Mexico.” The Court continued: “The Kumeyaay Nation currently occupies various lands extending from San Diego and Imperial Counties in California and 75 miles south of the Mexican border.”

The 9th Circuit Court panel did not acknowledge that the Kumeyaay Nation originally lived in 100% its own national Kumeyaay territory. Rather it said that the Kumeyaay Nation “aboriginally occupied areas of,” meaning, “belonging to,” the United States and Mexico. Use of the phrase “aboriginally occupied” provides a political context of foreign colonization. For the word “aboriginally” traces to “aborigine,” meaning, “An indigenous inhabitant esp. as contrasted with an invading or colonizing people.”

The context of an “invading or colonizing people” is the frame of reference for the 9th Circuit’s use of “aboriginally occupied” areas of “the southwestern United States” and “northwest Mexico.” This wording only considers the nature of the Kumeyaay Nation after it had been invaded and colonized, or become “indigenous.” To avoid any potential political complications that might arise as a result of the 9th Circuit Court of Appeals saying that the Kumeyaay Nation still “currently occupies” its own lands, the Court’s second footnote clarifies that, in the court’s view, the Kumeyaay Nation only has an “aboriginal interest” in the lands it currently occupies.

Get the Story:
Steven Newcomb: Ninth Circuit Court Panel Reaffirms 'Discovery and Conquest' (Indian Country Today 10/3)

Oral arguments in White v. University of California

9th Circuit Decision:
White v. University of California (August 27, 2014)

Federal Register Notice:
Notice of Inventory Completion: The University of California, San Diego, San Diego, CA (December 5, 2011)

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School barred from returning remains to Kumeyaay Nation (5/2)
Professors file a competing lawsuit over ancestral remains (4/25)
Kumeyaay Nation sues university to repatriate ancestors (4/24

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