United States District Court, District of Columbia
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]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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.
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.
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].
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).
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.
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.