Vekuii Rukoro, Paramount Chief of the Ovaherero People and Representative of the Ovaherero Traditional Authority, the Association of the Ovaherero Genocide in the USA, Inc., Barnabas Veraa Katuuo, individually and as an Officer of the Association of the Ovaherero Genocide in the USA, Inc., on behalf of themselves and all other Ovaherero and Nama Indigenous Peoples, Johannes Isaack, Chief and Chairman of the Nama Traditional Authorities Association, Plaintiffs-Appellants v. Federal Republic of Germany, Defendant-Appellant1 Plaintiffs — members of a putative class action on behalf of members and descendants of the Ovaherero and Nama indigenous peoples — appeal from the March 11, 2019 judgment of the United States District Court for the Southern District of New York (Swain, J.) dismissing their amended complaint against the Federal Republic of Germany for lack subject matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”). Plaintiffs seek damages for the enslavement and genocide of the Ovaherero and Nama peoples in what is now Namibia, as well as for property they alleged Germany expropriated from the land and peoples. As Germany is a foreign sovereign, the only path for the exercise of jurisdiction is if one of the exceptions to FSIA applies. The district court found none did, and dismissed the complaint. We affirm, although we part ways from the district court on its tracing analysis. FSIA’s takings exception provides that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case…in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.” 28 U.S.C. §1605(a)(3). The district court found that in pleading that Germany derived at least a portion of its wealth from property expropriated from Ovaherero and Nama, and those comingled funds were used to purchase property in New York, plaintiffs sufficiently alleged that “property exchanged for such property is present in the United States.” Id. We disagree and find plaintiffs’ allegations insufficient to trace the proceeds from property expropriated more than a century ago to present-day property owned by Germany in New York. While its tracing analysis was erroneous, the district court ultimately correctly concluded that no FSIA exception applied, leaving it without subject matter jurisdiction. Affirmed. ROSEMARY POOLER, C.J. Plaintiffs — members of a putative class action on behalf of members and descendants of the Ovaherero and Nama indigenous peoples — appeal from the March 11, 2019 judgment of the United States District Court for the Southern District of New York (Swain, J.) dismissing their amended complaint against the Federal Republic of Germany for lack subject matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”). Plaintiffs seek damages for the enslavement and genocide of the Ovaherero and Nama peoples in what is now Namibia, as well as for property they alleged Germany expropriated from the land and peoples. As Germany is a foreign sovereign, the only path for the exercise of jurisdiction is if one of the exceptions to FSIA applies. The district court found none did and dismissed the complaint. We affirm, although we part ways from the district court on its tracing analysis. FSIA’s takings exception provides that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case…in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.” 28 U.S.C. §1605(a)(3). The district court found that in pleading that Germany derived at least a portion of its wealth from property expropriated from Ovaherero and Nama, and those comingled funds were used to purchase property in New York, plaintiffs sufficiently alleged that “property exchanged for such property is present in the United States.” Id. We disagree and find plaintiffs’ allegations insufficient to trace the proceeds from property expropriated more than a century ago to present-day property owned by Germany in New York. While its tracing analysis was erroneous, the district court ultimately correctly concluded that no FSIA exception applied, leaving it without subject matter jurisdiction. BACKGROUND We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(1) de novo, accepting as true all material factual allegations in the complaint and drawing all reasonable inferences in the plaintiff’s favor. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56-57 (2d Cir. 2016). Plaintiffs Vekuii Rukoro, Johannes Isaack, The Association of the Ovaherero Genocide in the USA Inc., and Barnabas Veraa Katuuo (collectively, “Plaintiffs”) assert this putative class action on behalf of members and descendants of theOvaherero and Nama indigenous peoples. The amended complaint sets out in detail the events that we briefly summarize here. Germany colonized what was then known as German South West Africa, an area that is now Namibia, between roughly 1884 and 1903. Germany occupied Ovaherero and Nama land, seizing livestock, personal property, and natural resources for its own use. The German authorities seized multiple tracts of ancestral land, displacing those who lived there and forcing many Ovaherero and Nama people into slavery. In 1904, Germany sought to exterminate the Ovaherero and Nama peoples, lynching thousands of men, women, and children. Those that survived were moved into concentration camps. The Ovaherero and Nama people were treated as property, rented out as laborers, and worked until they died. Women and children were raped. Medical experiments were performed on live persons, while others were murdered and decapitated so that their remains could be studied by researchers who sought to prove the white race was superior. In 1985, the United Nations Economic and Social Council Commission on Human Rights issued a report deeming the events in Namibia a genocide. The amended complaint sought damages under the Alien Tort Statute, federal common law, the law of nations, conversion, damages for conversion of various property rights and unjust enrichment, an accounting, the establishment of a constructive trust, as well as injunctive and declaratory relief aimed at forcing Germany and Namibia to allow Plaintiffs’ participation in negotiations regarding the events detailed in the amended complaint. In support of their claim that jurisdiction was proper under several FSIA exceptions, Plaintiffs alleged that certain human remains, including skeletons and skulls, were shipped from Germany to the American Museum of Natural History (“AMNH”) in New York City (the “AMNH Remains”). The AMNH Remains “were originally collected by Professor Felix von Luschan, a German anthropologist and ethnologist at the Museum for Ethnology in Berlin from 1895-1910,” and then remained a part of von Luschan’s “private collection” until his widow sold the collection to the AMNH after von Luschan’s death in 1924. App’x at 92
