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Taylor v. Kingdom of Sweden

United States District Court, District of Columbia

August 2, 2019

ROY TAYLOR, a member of the PAWNEE NATION OF OKLAHOMA Plaintiff,
KINGDOM OF SWEDEN, a foreign state and THE NATIONAL MUSEUMS OF WORLD CULTURE, a government agency under the Swedish Ministry of Culture, Defendants.

          MEMORANDUM OPINION, [Dkt. # 14]


         Roy Taylor ("plaintiff) brought this tort action against the Kingdom of Sweden ("Sweden") and Sweden's National Museums of World Culture ("NMWC") (collectively, "defendants'") to recover personal property currently in defendants* possession. See generally Am. Compl. [Dkt. # 8]. Plaintiff is a member of the federally-recognized Pawnee Nation of Oklahoma tribe and the eldest living descendent of White Fox, a renowned Pawnee who traveled to Europe as a performer in 1874 and fell ill and died in Sweden a few months into his tour. Id. at ¶¶ 6, 33, 43. Plaintiff alleges that White Fox's mortal remains and personal belongings were taken by a Swedish scientist against the wishes of White Fox's brothers and travel companions. Id. at ¶ 48. In 1996, Sweden returned some of White Fox's remains to the United States for burial in the Pawnee Nation. Id. at ¶ 57. Through this action, plaintiff seeks to recover White Fox's personal belongings and the rest of White Fox's remains, which plaintiff alleges were taken-and are being held unlawfully by defendants. Id. at ¶¶ 75-89.

         Pending before me is defendants' joint motion to dismiss plaintiffs Amended Complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6) as well as the doctrine of forum non conveniens. See [Dkt. #14]. Upon consideration of the pleadings, the relevant law, and the entire record herein, and for the reasons stated below, defendants' motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is GRANTED, and this case is DISMISSED with prejudice.[1]


         According to the Amended Complaint, White Fox was a revered member of the Pawnee Nation who served as a Pawnee Scout for the United States Army in the mid-to-late 1800s. Am. Compl. at ¶ 15. In 1874, White Fox traveled to Scandinavia to perform Native American dances, songs, and other customs for European audiences who, likely due to nineteenth-century American literature, were fascinated by native North Americans. Id. at ¶¶ 31-35. White Fox was accompanied on his European tour by his brothers, Red Fox and White Eagle. Id. From May 1874 to January 1875, the three Pawnee men traveled to and performed in England, Denmark, Norway, and Sweden. Id. at ¶39.

         Unfortunately, as the Pawnee brothers traveled across Europe, White Fox's health deteriorated. Id. at ¶ 40. Soon after arriving in Gothenburg, Sweden in January 1875, White Fox, who had been stricken with tuberculosis, succumbed to the illness and passed away. Id. at ¶ 43. Red Fox and White Eagle requested that White Fox receive a proper Pawnee burial, but a Swedish scientist allegedly ignored their instructions and claimed White Fox's body for scientific purposes; White Fox's remains and his Pawnee regalia were sent to Stockholm for analysis by an anatomy professor named Gustaf von Duben. Id. at ¶¶ 48-49.[2]

         Plaintiff alleges that White Fox's remains were kept in storage and out of public view in Sweden for decades. Id. at ¶ 54. At some point, Sweden rediscovered the remains and in 1996 allegedly worked with the Pawnee Nation to return a portion of White Fox's remains to the United States for burial. Id. at ¶ 57. However, Sweden allegedly did not return White Fox's regalia and personal effects. Id. Plaintiff "believe[s]" that from 1996 to 2017, the Pawnee Nation made several repatriation requests to Sweden under the United Nations Educational, Scientific and Cultural Organization's ("UNESCO") 1970 Convention for the return of White Fox's belongings (although plaintiff claims he was unaware of those requests at the time). Id. at ¶¶ 55, 58. Sweden rejected the Pawnee Nations requests in early 2018. Id. at ¶ 59 & Ex. I.

         According to the Amended Complaint, plaintiff is an Oklahoma resident, member of the Pawnee Nation, and White Fox's great-grandnephew and eldest living descendent. Id. at ¶ 6. Plaintiff claims that he "first learned about Defendants' possession of his ancestor's regalia and personal property in early 2018." Id. at ¶ 61. He alleges that defendants are in unlawful possession of White Fox's personal property, including but not limited to his war shirt, leggings, moccasins, earrings, and necklace, as well as the remainder of White Fox's body that Sweden did not return in 1996. Id. at ¶ 3 & Exs. A-F. Upon learning of defendants' possession of these items, plaintiff, through counsel, sent a letter containing his own repatriation request for the property, which he directed to Ann Follin, the Director General of Sweden's National Museums of World Culture ("NMWC"). Id. at ¶ 63 & Ex. J. According to the Amended Complaint, NMWC "is a government agency in Sweden under the Ministry of Culture" whose "mission is defined by ordinance which tasks [NMWC] with showcasing and bringing to life the cultures of the world." Id. at ¶ 9. NMWC rejected plaintiff s repatriation request in March 2018. Id. at ¶ 65 & Ex. K.

         On May 14, 2018, plaintiff brought this action "for replevin and the repatriation and return of his ancestor's regalia and other personal belongings." Id. at 1. Specifically, plaintiff asserts claims against Sweden and NMWC for replevin, conversion, and unjust enrichment. Id. at ¶¶ 75-89. On December 21, 2018, defendants moved to dismiss the Amended Complaint with prejudice for lack of subject matter jurisdiction, failure to exhaust domestic remedies, lack of personal jurisdiction, failure to state a claim, and on forum non conveniens grounds. See Defs.' Mot. to Dismiss the Am. Compl. ("Defs.' Mot. to Dismiss") [Dkt. #14]. Plaintiff opposed the motion to dismiss on February 26, 2019, see Pl.'s Opp'n to Defs.' Mot. to Dismiss the Am. Compl. ("PL's Opp'n") [Dkt. # 15], and defendants filed their reply on March 28, 2019, see Reply in Supp. of Defs.' Mot. to Dismiss the Am. Compl. ("Defs.' Reply") [Dkt. # 16].


         Defendants contend that the Foreign Sovereign Immunities Act ("FSIA" or "Act"), 28 U.S.C. §§ 1602 et seq., provides them with immunity from plaintiffs suit and that no exception to the Act applies, thereby depriving this Court of subject matter jurisdiction over plaintiffs case. Defs.' Mot. to Dismiss at 5-18; see Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000). As FSIA immunity is "an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits," a "district court must make the critical preliminary determination of its own jurisdiction as early in the litigation as possible." Id. (internal quotation marks and citation omitted).

         The FSIA "envisions a process for litigating against foreign powers that respects the independence and dignity of every foreign state as a matter of international law while providing a forum for legitimate grievances." Murphy v. Islamic Republic of Iran, 778 F.Supp.2d 70, 71 (D.D.C. 2011). Accordingly, "a foreign state is presumptively immune from the jurisdiction of United States courts." Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002). The FSIA codifies certain limited statutory exceptions to this presumptive immunity, and those exceptions constitute "the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Nelson, 507 U.S. at 355 (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)). Specifically, under the Act courts lack subject matter jurisdiction over foreign states unless one of the exceptions in §§ 1605 or 1607 applies. See 28 U.S.C. §§ 1330(a), 1604.

         A motion to dismiss based on FSIA immunity may challenge not only the legal sufficiency of a plaintiffs jurisdictional allegations, but also "the factual basis of the court's subject matter jurisdiction under the FSIA, that is, either contest a jurisdictional fact alleged by the plaintiff ... or raise a mixed question of law and fact." . Phoenix Consulting, Inc., 216 F.3d at 149. As that is the case here, I am obligated to "go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss." Id. "To the extent that jurisdiction depends on particular factual propositions (at least those independent of the merits), the plaintiff must, on a challenge by the defendant, present adequate supporting evidence." Agudas Chasidei Chabad of U.S. v. Russian Fed'n.528 F.3d 934, 940 (D.C. Cir. 2008). ...

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