                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
HARLYN GERONIMO, et al.,       )
                               )
          Plaintiffs,          )
                               )
          v.                   )    Civil Action No. 09-303 (RWR)
                               )
BARACK HUSSEIN OBAMA, et al., )
                               )
          Defendants.          )
_____________________________ )

                        MEMORANDUM OPINION

     Plaintiffs, a group of twenty descendants of the Native

American Geronimo, have sued President Barack Obama, Secretary of

Defense Robert Gates, Secretary of the Army Peter Geren, Yale

University, and the Order of Skull and Bones under the Native

American Graves Protection and Repatriation Act (“NAGPRA”), 25

U.S.C. § 3001 et seq., seeking, among other things, an order

under § 3002 requiring the defendants to return Geronimo’s

remains and pay money damages.   President Obama, Gates, and Geren

(“federal defendants”) have moved to dismiss the complaint for

lack of subject matter jurisdiction and for failure to state a

claim.   Because plaintiffs fail to establish the necessary

express waiver of sovereign immunity by the United States, and

because the complaint fails to state a claim, the motion will be

granted and the complaint will be dismissed as to all defendants.
                                   -2-

                              BACKGROUND

     The plaintiffs assert that they are lineal descendants of

the legendary Apache warrior, Geronimo.     (Compl. ¶ 1.)   Geronimo

surrendered to federal troops in 1886.     He was held prisoner in

Florida and Alabama, and eventually was transferred to Fort Sill,

Oklahoma where he was buried “in the dress of a chief with his

possessions” upon his death.      (Id. ¶¶ 28-29, 31, 40.)   According

to the complaint, in 1918 or 1919, a group of Yale University

students who were members of the organization named the Order of

Skull and Bones opened the tomb of Geronimo and removed his

skull, other bones, and items that were buried with Geronimo’s

body, eventually transporting them to the Order’s premises on the

Yale campus.    (Id. ¶ 43.)   The plaintiffs seek an order under

25 U.S.C. § 3002 stating that they are Geronimo’s lineal

descendants entitled to Geronimo’s remains, requiring defendants

to surrender any such objects they possess, and awarding money

damages to the plaintiffs for wrongful seizure and possession of

the remains.1   (Id. ¶¶ 44-47.)

     The federal defendants have moved to dismiss under Federal

Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction, arguing that the federal government has not waived


     1
       Intervenor-plaintiffs Robert Geronimo and other lineal
descendants of Geronimo have intervened to argue that, in
accordance with Apache custom, Geronimo’s gravesite should not be
disturbed. (Intervenor Pls.’ Response to Mot. to Dismiss, at 1-
2.)
                                 -3-

sovereign immunity for cases arising under NAGPRA and the

plaintiffs failed to allege any other waiver of sovereign

immunity.    They also move to dismiss under Rule 12(b)(6) for

failure to state a claim, asserting that § 3002 does not apply to

ownership or control of Native Americans’ remains and funerary

objects that were discovered on federal lands before November 16,

1990, and that the plaintiffs fail to allege a discovery after

that date.   (Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’

Mem.”) at 1-3, 7, 11, 13.)    The plaintiffs and intervenor-

plaintiffs counter that NAGPRA does contain a waiver of sovereign

immunity, and that construing it to lack a waiver of sovereign

immunity would emasculate NAGPRA.      (Intervenor Pls.’ Response to

Mot. to Dismiss at 3-6; Pls.’ Opp’n to Mot. to Dismiss (“Pl’s

Opp’n”) at 6-8.)

                              DISCUSSION

     “In reviewing a motion to dismiss for lack of subject matter

jurisdiction, a court ‘accepts as true all of the factual

allegations contained in the complaint[.]’”     Teton Historic

Aviation Found. v. U.S. Dep’t of Def., 686 F. Supp. 2d 75, 78

(D.D.C. 2010) (quoting Peter B. v. CIA, 620 F. Supp. 2d 58, 67

(D.D.C. 2009)) (some internal quotations omitted).     “The

plaintiff bears the burden of establishing that the court has

jurisdiction over a claim.”    Teton Historic Aviation Foundation,

686 f. supp. 2d at 78.   For a complaint to survive a motion to
                                -4-

dismiss for failure to state a claim upon which relief can be

granted, the “complaint must contain sufficient . . . factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

     “The Federal Government cannot be sued without its consent.”

United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009).

Such consent to suit cannot be inferred or “‘implied but must be

unequivocally expressed.’”   Franconia Assocs. v. United States,

536 U.S. 129, 141 (2002) (quoting United States v. King, 395 U.S.

1, 4 (1969)); Strong-Fisher v. Lahood, 611 F. Supp. 2d 49, 53

(D.D.C. 2009).   “Jurisdiction over any suit against the

Government requires a clear statement from the United States

waiving sovereign immunity . . . together with a claim falling

within the terms of the waiver.’”     Cartwright Int’l Van Lines,

Inc. v. Doan, 525 F. Supp. 2d 187, 194 (D.D.C. 2007) (quoting

United States v. White Mountain Apache Tribe, 537 U.S. 465, 472

(2003)).   A court lacks subject matter jurisdiction to hear a

claim filed against the government that does not fall within the

scope of a waiver of sovereign immunity.    See P&V Enterprises v.

United States Army Corps of Eng’rs, 516 F.3d 1021, 1026-1027

(D.C. Cir. 2008); Ballard v. Holinka, 601 F. Supp. 2d 110, 121
                                   -5-

(D.D.C. 2009) (noting that sovereign immunity is jurisdictional

in nature).

     NAGPRA, which was enacted in 1990, “safeguards the rights of

Native Americans by protecting tribal burial sites and rights to

items of cultural significance to Native Americans.”    Pueblo of

San Ildefonso v. Ridlon, 103 F.3d 936, 938 (10th Cir. 1996).

“Cultural items protected under NAGPRA include Native American

human remains, funerary objects, sacred objects, and objects of

cultural patrimony.”   Id., citing 25 U.S.C. § 3001(3).

Plaintiffs bring their complaint under § 3002 (see Am. Compl.

¶ 45), which establishes the priority of ownership of Native

American cultural items which are excavated or discovered on

federal or tribal lands after November 16, 1990 with the lineal

descendants of the decedents, if the lineal decedents can be

established.   25 U.S.C. § 3002.    A plaintiff alleging a claim of

ownership under 25 U.S.C. § 3002 is entitled to bring an action

in the district court to seek “such orders as may be necessary to

enforce the provisions of th[e] Act.”    25 U.S.C. § 3013.

However, while § 3013 expressly provides for a private right of

action, NAGPRA does not provide a waiver of sovereign immunity.

See Rosales v. United States, No. 07-624, 2007 WL 4233060, at *3

(S.D. Cal. Nov. 28, 2007) (citing San Carlos Apache Tribe v.

United States, 272 F. Supp. 2d 860, 886 (D. Ariz. 2003)); see

also Monet v. United States, 114 F.3d 1195 (9th Cir. 1997)
                                 -6-

(stating that NAGPRA contains no waiver of sovereign immunity and

does not apply to remains excavated or discovered before

November 16, 1990).   As the complaint is pled, it establishes no

subject matter jurisdiction over plaintiffs’ claim against the

federal defendants.

      The waiver of sovereign immunity applicable to a claim under

NAGPRA is the waiver found within the Administrative Procedure

Act (“APA”), 5 U.S.C § 702.2    See Rosales, 2007 WL 4233060, at

*3.   “[T]he APA contains a limited waiver of sovereign immunity.”

Teton Historic Aviation Found., 686 F. Supp. 2d at 78; see also 5

U.S.C. § 702.   Specifically, the APA provides that “action[s]

seeking relief other than money damages and stating a claim that

an agency or an officer or an employee thereof acted or failed to

act in an official capacity [can]not be dismissed nor relief

therein denied on the ground that it is against the United

States.”3   5 U.S.C. § 702.   As a result, for a claim to arise


      2
       The case cited by intervenor plaintiffs, Bonnichsen v.
United States, 969 F. Supp. 614, 627 (D. Or. 1997), is not to the
contrary. While that court noted in a footnote that “an argument
can be made in favor” of the proposition that NAGPRA contains a
waiver of sovereign immunity, what the court found was that the
plaintiffs could proceed under the waiver of sovereign immunity
found in the APA. Bonnichsen, 969 F. Supp. at 627 n.17.
      3
       The APA’s waiver of sovereign immunity does not apply to
actions seeking money damages. See Benoit v. United States Dep’t
of Agric., 608 F.3d 17, 19 (D.C. Cir. 2010) (holding that suits
for money damages are not within the limited waiver of sovereign
immunity found in the APA). The plaintiffs’ claim seeking money
damages from all defendants, which does not allege that the claim
is being brought under the Federal Tort Claims Act (“FTCA”), 28
                                -7-

under the APA, an individual must allege action on the part of an

agency, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990),

and must not seek money damages.   Teton Historic Aviation

Foundation, 686 F. Supp. 2d at 79.

     In Rosales, the court dismissed a complaint alleging an APA

violation involving NAGPRA where the plaintiffs did not allege

that a final agency action had occurred.   See Rosales, 2010 WL

4233060, at *3-4, 10.   In that case, the plaintiffs filed suit

attempting to enjoin construction projects scheduled to occur on

land that they asserted was federally owned due to a ceding of

the land to the government by a tribe.   Id. at *1.   The court

noted that the plaintiffs “fail[ed] to identify discrete agency

inaction in violation of a nondiscretionary duty.”    Id. at 10.

     The plaintiffs’ complaint in this case is similarly

deficient.   It cites no agency action, inaction or involvement at


U.S.C. 1346(b)(1), would fall outside of the bounds of an APA
waiver of sovereign immunity for the federal defendants. Even if
the plaintiffs had invoked the FTCA, an FTCA claim cannot be
brought “unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail.” 28 U.S.C. § 2675(a). The plaintiffs have made
no showing or allegation that they have presented any claim
associated with the allegations contained in their complaint to
any agency. See McNeil v. United States, 508 U.S. 106, 113
(1993) (affirming dismissal for lack of subject matter
jurisdiction where the petitioner filed his FTCA suit before
presenting his claim to the appropriate federal agency); Upshaw
v. United States, 669 F. Supp. 2d 32, 45 (D.D.C. 2009)
(dismissing for lack of subject matter jurisdiction where
plaintiff failed to plead that he presented his claim to the
appropriate federal agency).
                                    -8-

all.       As a result, plaintiffs have not pled the agency action

needed for the APA’s waiver of sovereign immunity to apply as a

cure to the defect in subject matter jurisdiction.       Even if the

complaint were to be read to allege a claim under the APA -- a

statute the complaint nowhere invokes -- the complaint would have

to be dismissed for failure to state a claim.        See Smith v.

Harvey, 541 F. Supp. 2d 8, 13 n.4 (D.D.C. 2008) (holding that the

plaintiff failed to state an actionable claim under the APA where

the plaintiff acknowledged that no final agency action had

occurred).

       In any event, the complaint does fail to state a claim

because it alleges no discoveries after November 16, 1990, the

only discoveries to which § 3002 applies.       The only alleged

discovery or wrongful removal described by the complaint occurred

in or around 1918.4      (See Compl. ¶ 43.)   Because the complaint



       4
       To the extent the plaintiffs seek to require the federal
defendants to excavate Geronimo’s possible burial sites (see
Compl. ¶ 1), they cite to no provision of NAGPRA that requires a
federal agency to engage in an intentional excavation of possible
burial sites. The plaintiffs refer to 25 U.S.C. § 3003, which
required federal agencies and museums to create inventories of
“holdings or collections of Native American human remains and
associated funerary objects.” However, the plaintiffs do not
point to any authority interpreting this or any other section of
NAGPRA as requiring an intentional excavation. Cf. Hawk v.
Danforth, No. 06-C-223, 2006 U.S. Dist. LEXIS 58104, at *1, 4
(E.D. Wisc. Aug. 17, 2006) (granting motion to dismiss where
plaintiff sought intentional excavation of possible burial sites
under a parking lot, because “[s]imply put, no provision in
[NAGPRA] requires a Tribe or anyone else to excavate an area in
order to find remains or other artifacts”).
                                -9-

does not set forth facts supporting an actionable claim, it will

be dismissed as to the non-federal defendants as well.   See,

e.g., School for Arts in Learning Public Charter School v.

Barrie, Civil Action No. 09-2357 (RWR), 2010 WL 2838533, at *4

(D.D.C. July 20, 2010) (dismissing complaint as to both moving

defendant and non-moving defendant where the complaint failed to

set forth facts supporting an actionable claim); Barnes v. Dist.

of Columbia, Civil Action No. 03-2547 (RWR), 2005 WL 1241132, at

*3 (D.D.C. May 24, 2005) (granting dismissal for non-movant where

basis for movant’s dismissal applied to non-movant).

                            CONCLUSION

     Because they have failed to establish that the United States

waived its sovereign immunity, the plaintiffs have failed to

establish the court’s subject matter jurisdiction over this

complaint, and the federal defendants’ motion to dismiss will be

granted.   Because the complaint fails to allege facts that

support a cause of action, the complaint will be dismissed as to

the non-moving defendants as well.    An appropriate order

accompanies this memorandum opinion.

     SIGNED this 27th day of July, 2010.


                                           /s/
                                RICHARD W. ROBERTS
                                United States District Judge
