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Native American Graves Protection and Repatriation Act
The University of California Is Not Adequately Overseeing Its Return of Native American Remains and Artifacts

Report Number: 2019-047

Summary

Audit Highlights . . .

Our audit of the University of California’s (university) compliance with state and federal laws protecting Native American human remains and cultural objects (remains and artifacts) highlighted the following:

Results in Brief

The federal Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990, and its California counterpart (CalNAGPRA), enacted in 2001, establish requirements for the protection of Native American graves and the treatment and return of Native American human remains and cultural objects (remains and artifacts) from the collections of government agencies and museums (agencies). In California, the University of California (university) maintains a significant collection of hundreds of thousands of remains and artifacts. NAGPRA prescribes a process for entities with such collections, including the university’s various campuses, to repatriate, or return, these remains and artifacts to tribes that have a traceable relationship to them. Once agencies return remains, some tribes may choose to rebury them because those tribes believe that the spirit of their ancestors cannot rest until they are properly buried.

Federal law allows only those tribes that the U.S. Department of the Interior officially recognizes to use NAGPRA’s repatriation process. However, many California tribes lost their federal recognition during the mid‑20th century as part of the federal government’s efforts to integrate Native Americans into American society. To address this issue, the Legislature passed CalNAGPRA to encourage and increase repatriation of Native American remains and artifacts to California tribes, in part by expanding the number of California‑based tribes that can submit repatriation claims. The Legislature amended CalNAGPRA in 2018 to add specific requirements for the university, which include implementing a systemwide policy regarding the appropriate treatment and repatriation of Native American remains and artifacts consistent with NAGPRA and CalNAGPRA.

We reviewed the university’s campuses at Berkeley, Davis, and Los Angeles—and found that each campus takes a different approach when making key decisions related to NAGPRA. For example, an important component of the repatriation process is identifying the tribe or tribes with a traceable relationship to the remains and artifacts, a process known as affiliation. Campuses often work with a tribe to review evidence related to the tribe’s affiliation with remains or an artifact, but they have different approaches both to their interactions with tribes and to the level of evidence they require to decide whether remains or artifacts belong to a particular tribe or tribes. For example, unlike the other two campuses, Berkeley regularly required tribes to submit additional evidence for affiliation beyond what the tribe provided in its claim, which can extend the time before it returns the remains and artifacts.

We found similar inconsistencies in the campuses’ approaches when we looked at instances when the campuses have concluded that it was not possible to affiliate remains or artifacts to specific tribes because the available evidence was insufficient to support a traceable connection. Because more than one tribe might have lived in the same area at different times, campuses cannot always use a geographic location to affiliate remains or an artifact to a specific tribe. In these cases, a tribe may file a claim through a process called disposition. In this process, a campus must consult with the tribes from whose land the remains or artifacts were removed, which may include multiple tribes because of overlapping territories, and attempt to reach agreement among all parties on the proposed disposition. Berkeley believes it must receive written support from all consulted tribes on the proposed disposition before it returns the remains or artifacts to the requesting tribe—a process that can take more than a year. In contrast, Davis only requires that it make a good faith effort to obtain support, which it does not require to be in writing, from the other tribes before it returns the remains or artifacts to the tribe that filed the disposition claim.

These differences in approach have likely contributed to the fact that some campuses have returned larger proportions of the Native American remains and artifacts in their collections to tribes. Specifically, Los Angeles has repatriated nearly all of the remains and artifacts in its collection that are subject to NAGPRA, while Berkeley has returned only about 20 percent. These variations underscore the need for the university to develop a uniform NAGPRA policy that ensures consistency across its campuses, as CalNAGPRA requires. Although the university’s Office of the President (Office of the President) is currently drafting a systemwide policy, the draft policy does not create consistency across the campuses as state law intends. For example, it does not provide methods to standardize affiliation decisions within and between campuses, such as a standardized process for reviewing evidence of affiliation. The draft policy also does not facilitate oversight of campus decisions by, for example, requiring campuses to regularly and consistently report information about their repatriation activities to the Office of the President's NAGPRA committee (systemwide committee) responsible for NAGPRA-related issues. In addition, the Office of the President did not implement the policy by January 1, 2020, as CalNAGPRA required. Instead, the Office of the President decided to delay finalizing the policy until July 2020 so that it could obtain more input from tribes and stakeholders.

Along with the systemwide committee, another important source of oversight for campuses that have remains and artifacts are their campus-level NAGPRA committees. These committees, composed of members from the university and from tribes, are responsible for reviewing campuses’ repatriation decisions. In 2018 and 2019, the Legislature amended CalNAGPRA to ensure that tribal members have representation equal to the number of university members on the campus and systemwide committees. However, the campus and systemwide committees do not currently meet CalNAGPRA’s requirements for tribal representation. The campuses and the Office of the President explained they have not ensured that the membership of their committees complies with state law because they are waiting for the issuance of the university’s systemwide policy, which they assert will provide exceptions to enable them to select the most qualified committee members. We find this explanation unreasonable given that state law already adequately specifies the committees’ required membership and provides for exceptions. Until the campuses and the Office of the President revise their committee memberships, they cannot ensure that they are involving all needed stakeholders in repatriation decisions and hearing sufficient tribal perspectives before making these decisions.

CalNAGPRA also established a process for tribes in California that are not federally recognized to pursue repatriation, but its current definition of a California tribe will not significantly expand the number of tribes that can pursue repatriation. Although the federal government already recognizes more than 100 tribes in California, CalNAGPRA established a process that would enable the State to officially recognize dozens of additional tribes. Specifically, CalNAGPRA requires the Native American Heritage Commission (NAHC)—a state entity that manages Native American cultural resources in California—to publish a list of California tribes that are eligible to participate in CalNAGPRA’s repatriation process. Under CalNAGPRA, a key criterion for inclusion on the list is for a tribe to be petitioning for federal recognition. According to the NAHC, because the U.S. Department of the Interior changed its regulations for tribes that were petitioning for federal recognition in 2015, the number of tribes in California formally seeking recognition decreased dramatically, from 81 tribes in 2013 to just four tribes in 2020. This significant reduction does not meet the Legislature’s intent for CalNAGPRA to provide a means for California tribes that are not federally recognized to seek the repatriation of remains and artifacts.

Moreover, although CalNAGPRA has required the NAHC to publish the list of tribes since 2015, the NAHC has not done so. When we asked the NAHC about the significant delay, it could not explain why it had not promptly published the list as state law required, but it indicated it has taken steps to do so more recently. Specifically, during the summer of 2019, the NAHC began internal discussions about its process for including tribes on the list, and the executive secretary noted that if the NAHC were to publish the list, it would contain only four tribes. Several tribes raised similar concerns to the NAHC. The NAHC is currently monitoring efforts to amend state law to expand the number of tribes that can make repatriation claims. If this legislation is not successful, the NAHC plans to publish the list after the legislative session concludes in August 2020. Without this list, even those four additional tribes are not able to use the State’s repatriation process to obtain remains and artifacts that belong to them.

Selected Recommendations

Legislature

To allow more California tribes to pursue repatriation of remains and artifacts that may belong to them, and consistent with the intent of CalNAGPRA, the Legislature should amend state law to allow more tribes to be eligible for inclusion on the NAHC’s list of recognized tribes.

University

To increase oversight and ensure that campuses consistently review claims, the Office of the President should require campuses to provide reports about all current claims for affiliation, repatriation, and disposition, as well as any associated decisions, to the systemwide committee for biannual review no later than January 2021.

To ensure that the affiliation, repatriation, and disposition processes are timely and consistent across all campuses as the Legislature intended, the Office of the President should publish its final systemwide NAGPRA policy no later than August 2020.

To ensure that tribal perspectives are appropriately represented in repatriation decisions, the Office of the President should ensure that membership of campus and systemwide committees complies with state law by including appropriate tribal representation no later than September 2020.

NAHC

To ensure that more tribes can make repatriation claims, the NAHC should publish the list of recognized California tribes no later than September 2020.

Agency Comments

The university agreed with our recommendations and indicated that it would implement them to improve its policies and practices. The NAHC raised numerous questions and concerns about the redacted draft report we provided to it for its response. In particular, the NAHC expressed concern about the redacted draft report not including any discussion of the university’s compliance with NAGPRA and CalNAGPRA, as well as concerns about implementing the one recommendation we made to it.




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