PUBLISH
UNITED STATES COURT OF APPEALS Filed 12/24/96 TENTH CIRCUIT
____________
PUEBLO OF SAN ILDEFONSO,
Plaintiff-Appellant,
v. No. 95-2197
DANIEL RIDLON and REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Defendants-Appellees.
Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV 93-1467) ____________
Peter C. Chestnut, Albuquerque, New Mexico, for Plaintiff-Appellant.
Stephen D. Aarons, Santa Fe, New Mexico for Defendants-Appellees.
Before TACHA, Circuit Judge, and GODBOLD * and HOLLOWAY, Senior Circuit Judges.
* The Honorable John C. Godbold, Senior United States Circuit Judge for the Eleventh Circuit Court of Appeals, sitting by designation. GODBOLD, Senior Circuit Judge:
Appellant Pueblo of San Ildefonso (“Pueblo”), a federally recognized Indian tribe,
filed an action under 25 U.S.C. § 3001-3013, the Native American Graves
Protection and Repatriation Act (“NAGPRA”), to secure the return of a piece of
Native American pottery from Appellees Daniel Ridlon and the Regents of the
University of California. On cross-motions for summary judgment the District
Court construed Ridlon’s motion as a motion to dismiss for want of subject matter
jurisdiction and dismissed the Pueblo’s action pursuant to F.R.C.P. 12(b)(1). We
vacate the judgment of the district court.
I. Factual Background
In 1978 twelve-year old Daniel Ridlon discovered a piece of Native
American pottery while hiking on property owned by Los Alamos County, New
Mexico. The pottery consists of two ancient bowls sealed together that contain a
bundle of macaw feathers tied with yucca twine. Shortly after his discovery
Ridlon turned the pottery over to the Bradbury Museum, a federally-funded
museum operated by the Regents of the University of California. The Museum
has continually possessed and displayed the pottery since shortly after its
discovery in 1978.
In 1988 the Museum refused Ridlon’s demands for return of the pottery and
Ridlon successfully sued the Museum and Los Alamos County in New Mexico
-2- state court for conversion. See Opinion of the Federal District Court, No. 93-
1467, at 2 (D.N.M. Sept. 14, 1995). However, the state court vacated its
judgment and allowed the Pueblo to intervene asserting a right to repatriation of
the pottery under NAGPRA. Id. Los Alamos County subsequently assigned its
rights in the pottery to the Pueblo. The state court concluded that it lacked
jurisdiction over the NAGPRA claim and dismissed the action without prejudice.
Id.
Thereafter the Pueblo filed the present action seeking repatriation under
NAGPRA, protection of its property interest under the Treaty of Guadalupe-
Hidalgo, and declaratory relief pursuant to the Declaratory Judgment Act, 28
U.S.C. § 2201. The U.S. District Court, D.N.M., dismissed the action, finding that
neither NAGPRA nor the treaty provided an adequate basis for federal subject
matter jurisdiction. Id. at 4. The court also declined to exercise supplemental
jurisdiction over the parties’ state law ownership claims. Id. at 6. Because
resolution of the NAGPRA issue is determinative of this matter, we do not reach
the Pueblo’s other grounds for appeal.
We exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1291 and
NAGPRA’s jurisdictional and repatriation provisions, 25 U.S.C. §§ 3013 and
3005(a) respectively. Section 3013 vests federal courts with jurisdiction over
“any action brought by any person alleging a violation of this chapter.” The
Pueblo claims a violation of NAGPRA’s repatriation provision, § 3005(a), which
-3- applies to “Native American human remains and objects possessed or controlled
by Federal agencies and museums.” Since the Bradbury Museum is a “museum”
as defined by NAGPRA 1 and has possessed and controlled the pottery since
shortly after its discovery, the district court has a basis for subject matter
jurisdiction over the Pueblo’s repatriation claim.
II. Native American Graves Protection & Repatriation Act
Enacted in 1990, NAGPRA safeguards the rights of Native Americans by
protecting tribal burial sites and rights to items of cultural significance to Native
Americans. See 43 C.F.R. § 10.1 (1995). Cultural items protected under
NAGPRA include Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony. 2 25 U.S.C. § 3001(3)(1990). The
Pueblo asserts that the pottery is an object of cultural patrimony and that the
Regents had no right to possession of the pottery under NAGPRA. Brief of the
1 Section 3001(8) defines “museum” as “any institution or State or local government agency (including any institution of higher learning) that receives federal funds and has possession of, or control over, Native American cultural items.” 25 U.S.C. § 3001(8)(1990).
2 An item of cultural patrimony is “an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group.” 25 U.S.C. § 3001(3)(D).
-4- Pueblo at 6.
NAGPRA has two distinct schemes governing the return of Native
American cultural items to tribes, with the analysis turning upon whether the item
is presently held by a federal agency or museum or is discovered on federal lands
after November 16, 1990, NAGPRA’s effective date. First, the Act addresses
items excavated on federal lands after November 16, 1990 and enables Native
American groups affiliated with those items to claim ownership. See 43 C.F.R. §
10.1 (1995); H.R. Rep. No. 101-877, 101st Cong., 2d Sess. (1990), reprinted in
1990 U.S.C.C.A.N. 4367, 4368. Second, NAGPRA provides for repatriation of
cultural items currently held by federal agencies, including federally-funded
museums. Id.
The parties dispute the applicability of NAGPRA. The district court found
that the Pueblo’s claim fell short of providing an adequate basis of subject matter
jurisdiction. Op. of the Dist. Ct. at 4. The court relied upon NAGPRA’s
ownership provision which limits the effect of that section to “. . . Native
American cultural items which are excavated or discovered on Federal or tribal
lands after November 16, 1990 . . .” Id. (citing 25 U.S.C.
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PUBLISH
UNITED STATES COURT OF APPEALS Filed 12/24/96 TENTH CIRCUIT
____________
PUEBLO OF SAN ILDEFONSO,
Plaintiff-Appellant,
v. No. 95-2197
DANIEL RIDLON and REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Defendants-Appellees.
Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV 93-1467) ____________
Peter C. Chestnut, Albuquerque, New Mexico, for Plaintiff-Appellant.
Stephen D. Aarons, Santa Fe, New Mexico for Defendants-Appellees.
Before TACHA, Circuit Judge, and GODBOLD * and HOLLOWAY, Senior Circuit Judges.
* The Honorable John C. Godbold, Senior United States Circuit Judge for the Eleventh Circuit Court of Appeals, sitting by designation. GODBOLD, Senior Circuit Judge:
Appellant Pueblo of San Ildefonso (“Pueblo”), a federally recognized Indian tribe,
filed an action under 25 U.S.C. § 3001-3013, the Native American Graves
Protection and Repatriation Act (“NAGPRA”), to secure the return of a piece of
Native American pottery from Appellees Daniel Ridlon and the Regents of the
University of California. On cross-motions for summary judgment the District
Court construed Ridlon’s motion as a motion to dismiss for want of subject matter
jurisdiction and dismissed the Pueblo’s action pursuant to F.R.C.P. 12(b)(1). We
vacate the judgment of the district court.
I. Factual Background
In 1978 twelve-year old Daniel Ridlon discovered a piece of Native
American pottery while hiking on property owned by Los Alamos County, New
Mexico. The pottery consists of two ancient bowls sealed together that contain a
bundle of macaw feathers tied with yucca twine. Shortly after his discovery
Ridlon turned the pottery over to the Bradbury Museum, a federally-funded
museum operated by the Regents of the University of California. The Museum
has continually possessed and displayed the pottery since shortly after its
discovery in 1978.
In 1988 the Museum refused Ridlon’s demands for return of the pottery and
Ridlon successfully sued the Museum and Los Alamos County in New Mexico
-2- state court for conversion. See Opinion of the Federal District Court, No. 93-
1467, at 2 (D.N.M. Sept. 14, 1995). However, the state court vacated its
judgment and allowed the Pueblo to intervene asserting a right to repatriation of
the pottery under NAGPRA. Id. Los Alamos County subsequently assigned its
rights in the pottery to the Pueblo. The state court concluded that it lacked
jurisdiction over the NAGPRA claim and dismissed the action without prejudice.
Id.
Thereafter the Pueblo filed the present action seeking repatriation under
NAGPRA, protection of its property interest under the Treaty of Guadalupe-
Hidalgo, and declaratory relief pursuant to the Declaratory Judgment Act, 28
U.S.C. § 2201. The U.S. District Court, D.N.M., dismissed the action, finding that
neither NAGPRA nor the treaty provided an adequate basis for federal subject
matter jurisdiction. Id. at 4. The court also declined to exercise supplemental
jurisdiction over the parties’ state law ownership claims. Id. at 6. Because
resolution of the NAGPRA issue is determinative of this matter, we do not reach
the Pueblo’s other grounds for appeal.
We exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1291 and
NAGPRA’s jurisdictional and repatriation provisions, 25 U.S.C. §§ 3013 and
3005(a) respectively. Section 3013 vests federal courts with jurisdiction over
“any action brought by any person alleging a violation of this chapter.” The
Pueblo claims a violation of NAGPRA’s repatriation provision, § 3005(a), which
-3- applies to “Native American human remains and objects possessed or controlled
by Federal agencies and museums.” Since the Bradbury Museum is a “museum”
as defined by NAGPRA 1 and has possessed and controlled the pottery since
shortly after its discovery, the district court has a basis for subject matter
jurisdiction over the Pueblo’s repatriation claim.
II. Native American Graves Protection & Repatriation Act
Enacted in 1990, NAGPRA safeguards the rights of Native Americans by
protecting tribal burial sites and rights to items of cultural significance to Native
Americans. See 43 C.F.R. § 10.1 (1995). Cultural items protected under
NAGPRA include Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony. 2 25 U.S.C. § 3001(3)(1990). The
Pueblo asserts that the pottery is an object of cultural patrimony and that the
Regents had no right to possession of the pottery under NAGPRA. Brief of the
1 Section 3001(8) defines “museum” as “any institution or State or local government agency (including any institution of higher learning) that receives federal funds and has possession of, or control over, Native American cultural items.” 25 U.S.C. § 3001(8)(1990).
2 An item of cultural patrimony is “an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group.” 25 U.S.C. § 3001(3)(D).
-4- Pueblo at 6.
NAGPRA has two distinct schemes governing the return of Native
American cultural items to tribes, with the analysis turning upon whether the item
is presently held by a federal agency or museum or is discovered on federal lands
after November 16, 1990, NAGPRA’s effective date. First, the Act addresses
items excavated on federal lands after November 16, 1990 and enables Native
American groups affiliated with those items to claim ownership. See 43 C.F.R. §
10.1 (1995); H.R. Rep. No. 101-877, 101st Cong., 2d Sess. (1990), reprinted in
1990 U.S.C.C.A.N. 4367, 4368. Second, NAGPRA provides for repatriation of
cultural items currently held by federal agencies, including federally-funded
museums. Id.
The parties dispute the applicability of NAGPRA. The district court found
that the Pueblo’s claim fell short of providing an adequate basis of subject matter
jurisdiction. Op. of the Dist. Ct. at 4. The court relied upon NAGPRA’s
ownership provision which limits the effect of that section to “. . . Native
American cultural items which are excavated or discovered on Federal or tribal
lands after November 16, 1990 . . .” Id. (citing 25 U.S.C. § 3002(a)). Since “[t]he
pottery at issue was discovered prior to the enactment of the NAGPRA on land
owned by a county, not the federal government or an Indian tribe,” the district
court held that it lacked jurisdiction and dismissed the case. Id.
On appeal the Pueblo contends that the district court’s reliance on the
-5- ownership provision was misplaced because the Pueblo brought its claim under
NAGPRA’s repatriation provisions, 25 U.S.C. §§ 3004 and 3005, which are not
limited to items found on federal lands after November 16, 1990. Brief of the
Pueblo at 7. NAGPRA requires repatriation of items of cultural patrimony that
are presently in the possession or control of federally-funded museums provided
other requirements of repatriation are met. See 25 U.S.C. §§ 3004, 3005 (1990).
The Pueblo asserts that NAGPRA’s express statutory language,
administrative regulations and legislative history support the conclusion that the
Pueblo’s claim for repatriation of the pottery falls within the purview of
NAGPRA and does provide a basis for federal subject matter jurisdiction. We
agree and, therefore, vacate the judgment of the district court.
A. Statutory Language
As a preliminary matter, we note that by § 3013, NAGPRA explicitly vests
jurisdiction in federal courts:
The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter [NAGPRA] and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.
25 U.S.C. § 3013 (1990).
The Pueblo sought repatriation of the pottery pursuant to 25 U.S.C. §§ 3004
and 3005, which address repatriation of objects presently in the possession or
control of federal agencies, including federally-funded museums like the
-6- Bradbury Museum. Nothing in the express language of these sections indicates
that repatriation is limited by when or where the object subject to repatriation was
found. Where statutory language is clear and unambiguous, that language is
controlling and courts should not add to that language. U.S. v. Thompson, 941
F.2d 1074, 1077 (10th Cir. 1991); Aulston v. U.S., 915 F.2d 584 (10th Cir. 1990),
cert. denied, 500 U.S. 916 (1991). The language of the repatriation section
supports federal subject matter jurisdiction in this case.
First, 25 U.S.C. § 3005(a) entitled “Repatriation of Native American human
remains and objects possessed or controlled by Federal agencies and museums,”
provides
If, pursuant to § 3004 of this title, the cultural affiliation with a particular Indian tribe . . . is shown with respect to . . . objects of cultural patrimony, then the Federal agency or museum, upon the request of the Indian tribe . . . and pursuant to subsections (b), (c), and (e) of this section, shall expeditiously return such objects.
25 U.S.C. § 3005(a)(2)(1990). As the title of § 3005 indicates, repatriation
applies to items presently in possession of federally-funded museums, including
items possessed on November 16, 1990, NAGPRA’s effective date. Unlike the
restrictive ownership provision, nowhere does the language of this section suggest
that repatriation is limited to post-November 16, 1990 excavations on federal
lands. Although the district court correctly concluded that NAGPRA’s ownership
-7- provision only applies to items found after November 16, 1990 on federal lands,
the court should not have imposed date and location restrictions on repatriation
where nothing in NAGPRA’s statutory scheme or language requires such
limitations.
Second, the only section of the Act that expressly contains a limiting date is
the ownership section, § 3002, which relates only to items excavated or
discovered on federal lands after November 16, 1990. The district court
concluded that, because the pottery was discovered in 1978 on non-federal land,
the ownership provision did not apply to the pottery. However, the Pueblo did not
sue under the ownership section. The Pueblo sued under § 3005, claiming a right
of repatriation of the pottery. Because NAGPRA’s express language does not
limit repatriation to items found after November 16, 1990, NAGPRA applies to
the Pueblo’s repatriation claim as a matter of law.
B. Administrative Interpretations
Administrative interpretations support the Pueblo’s contention that
repatriation is not limited by when a Native American object was found. First,
regulations issued to carry out the provisions of NAGPRA distinguish between
ownership and repatriation. “An administrative agency’s interpretation of a
statute which the agency is entrusted to administer is entitled to considerable
deference by a reviewing court.” Bernstein v. Sullivan, 914 F.2d 1395, 1400
(10th Cir. 1990).
-8- NAGPRA Regulations are subdivided into two distinct subparts that
separately address repatriation and ownership. Subpart B concerns the disposition
of Native American items discovered or excavated, either inadvertently or
intentionally, on federal lands after November 16, 1990. 43 C.F.R. §§ 10.3(a) &
10.4(a) (1995). Subpart C addresses repatriation of Native American objects in
possession of federal agencies and museums. 43 C.F.R. §§ 10.8 - 10.10 (1995).
Regulations concerning repatriation do not contain a limiting date and, therefore,
support the conclusion that the Pueblo stated a claim under NAGPRA to establish
federal subject matter jurisdiction.
III. Conclusion
We VACATE the district court’s judgment and REMAND for further
proceedings consistent with this opinion.
-9-