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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

Audit Results

Campuses Are Inconsistent in Their Processes for Returning Human Remains and Artifacts to Tribes

The Office of the President has provided campuses with minimal guidance for implementing NAGPRA and CalNAGPRA, which has allowed inconsistencies to persist in the approaches the campuses use when determining whether to return remains and artifacts. ³ Our review focused primarily on the repatriation and disposition processes established by federal regulations rather than by CalNAGPRA, as CalNAGPRA was intended to supplement NAGPRA. As we discuss in the Introduction, the campuses have two processes for returning remains and artifacts to tribes: repatriation, which a campus uses when it is able to affiliate—or connect—remains or artifacts to a specific federally recognized tribe, and disposition, which a campus uses when it is unable to affiliate remains or artifacts with a specific federally recognized tribe. If a tribe submits an affiliation claim for remains or artifacts, university policy requires that the campus work with that tribe when evaluating evidence to determine affiliation. However, the three campuses we visited—Berkeley, Davis, and Los Angeles—used varying approaches when evaluating available evidence to determine whether remains or artifacts are affiliated. The three campuses also have different interpretations of the level of necessary consultation with tribes before completing dispositions. Moreover, campus committees that are responsible for approving the campuses’ repatriation and disposition decisions have exercised only limited oversight of these decisions. The inconsistencies we identified across the campuses were often a result of the overly broad discretion they are allowed by the Office of the President and indicate a need for greater systemwide guidance.

Campuses Use Different Standards for Affiliation Determinations and Disposition Consultations

We reviewed a selection of claims that the three campuses received from tribes from 2010 through 2019, including nine repatriation claims at Berkeley, five at Davis, and five at Los Angeles. We reviewed about half of the total claims that Berkeley, Davis, and Los Angeles received during this period. Some of the repatriation claims were also affiliation claims, and we found that Berkeley was the only campus to request additional documentation and evidence beyond what the tribes provided in support of their affiliation claims. Berkeley’s approach extended the time needed to return remains and artifacts. The Office of the President stated that although there may be legitimate reasons for differences in the amount of evidence campuses request from tribes, the different approaches campuses take could be an indicator of a campus’s reluctance to assist and partner with tribes to promote repatriation. Out of five affiliation claims we reviewed at Berkeley, it requested additional evidence for four. For example, for one claim, its insistence that the tribe provide additional evidence—and the time the tribe took to provide that evidence—added 18 months to the affiliation decision. Initially, the tribe contested the need for more evidence, asserting that Berkeley had not given the tribe’s oral history and traditions the same weight as scientific evidence, but the tribe continued to work with the campus and provided additional evidence.

Campuses use different standards when assessing evidence of affiliation. Of the five affiliation claims we reviewed, Berkeley eventually approved two, relying on at least two types of evidence for each claim. Similarly, Los Angeles relied on multiple kinds of evidence in its one affiliation claim we reviewed. In contrast, Davis generally relied on fewer types of evidence to make its decisions about affiliation. For instance, in two of the three affiliation claims we reviewed at Davis, it based its decisions on geographic evidence only—that is, the location where the remains or artifacts were discovered. Berkeley stated that it does not believe geographic evidence alone is generally sufficient because more than one tribe might have lived in the same territory over time. Because of these campus differences, a tribe may have greater success with an affiliation claim depending on the campus in possession of the remains and artifacts.

We also found that the three campuses have different practices for processing disposition claims. We reviewed disposition claims that the three campuses received from 2010 through 2019, including one at Berkeley, three at Davis, and two at Los Angeles. Tribes may pursue a disposition claim for remains and certain artifacts that a campus has not been able to affiliate with a specific tribe. After receiving a disposition claim, a campus is required to consult with all tribes from whose lands the remains or artifacts were removed, which may include multiple tribes because of overlapping tribal territories. The intent of these consultations is to reach agreement among the tribes on a proposed disposition. However, campuses have used different practices to consult with these tribes, and the time they took to process disposition claims varied widely.

The disposition practices that Davis and Los Angeles used recognize that not all tribes will formally respond to their requests for agreement on proposed dispositions. For one of Davis's disposition claims, it sent letters to the other tribes from whose lands the remains were removed, informing them of the disposition claim and requesting their permission to transfer the remains and artifacts to the tribe that submitted the claim. The campus began following up about two months later with phone calls to tribes that had not responded and continued to make these calls over a period of several months. After a majority of the tribes expressed written or verbal support for transferring the remains and artifacts to the tribe that submitted the disposition claim, Davis continued the disposition process by publishing a notice in the Federal Register. Los Angeles corresponded informally—and did not maintain documentation of that correspondence—with the other tribes associated with the lands where the remains and artifacts were found to obtain their support for its two disposition claims. Thus, we were unable to determine how many tribes it consulted with or the amount of time it provided those tribes to respond.

Conversely, for the one disposition claim we reviewed from Berkeley, the campus required all the tribes whose lands include the area where the claimed remains were found to respond in writing before it would proceed with returning the remains. According to Berkeley, if it did not have support for the disposition from other tribes with a historical connection to the land in question, one of those tribes could hold the campus legally accountable for returning the remains or artifacts to the tribe that submitted the disposition claim. Berkeley confirmed that no tribe had ever done so but noted that the campus might not have been subject to such a claim precisely because it follows these practices. We find Berkeley’s approach to be overly cautious, as federal law does not require it to obtain agreement from all consulted tribes before returning remains or artifacts.

Additionally, Berkeley did not follow up with tribes after sending the initial letter requesting consultation. After sending out those letters, the campus did not conduct further work on the claim for 17 months. In fact, the campus contacted the tribes again only after the tribe claiming disposition asked for an update on the process, which restarted Berkeley’s work on the claim. According to Berkeley, it did not initiate follow-up because it is not the campus’s place to pressure tribes to respond to a timeline that it sets. It took another 20 months for the campus to obtain responses from all remaining tribes, leading to the eventual return of the remains to the tribe that submitted the disposition claim. Berkeley’s practice of ensuring that it receives a written response from every tribe about its support for disposition claims and its failure to follow up when tribes do not respond, unnecessarily extends the time it takes for returns.

Campus Committees Exercise Minimal Oversight of Campus Decisions

Two of the three campus committees do not review pending repatriation and disposition claims that their campuses are processing, limiting their ability to provide advice and direction. All three campuses we reviewed have campus-level committees that advise on NAGPRA implementation. However, although each of the three campuses stated that their museum staff communicate with their committees, two do not have a formal mechanism for doing so. Specifically, Davis presents ongoing claim information to the entire committee during documented meetings. In contrast, Los Angeles stated that it is in frequent, informal contact with the committee chair, and Berkeley noted that it too informally communicates with the committee chair to determine whether it has enough evidence to present a claim to the campus committee.

Berkeley’s and Los Angeles’s practice of using informal communication does not allow their committees to provide advice about pending claims. For example, as we describe previously, Berkeley allowed a claim to remain pending for 17 months until the requesting tribe asked for an update on the status of its claim. Because Berkeley’s practice is to informally communicate with its committee about pending claims, it could not demonstrate whether the campus committee was aware of this delay. If the campus committee had been formally reviewing the status of pending claims, it could have instructed the campus to follow up with those tribes, and the tribe that made the request might not have had to wait as long for the return of the claimed remains.

Additionally, several tribes have complained that Berkeley’s process lacks transparency and timeliness. For example, one tribe explained to Berkeley that it had complained to the national committee in part because the tribe had not received any information from the campus about when its claim might progress to the campus committee, even though the tribe had made the claim more than two years earlier. Without occasional, formal review of pending claims, including those stalled in the repatriation or disposition process, the campus committee cannot hold the campus accountable for how it is managing claims and ensure that any delays tribes experience in pursuing the return of remains and artifacts are reasonable.

Further, Berkeley explained that when a tribe tries to support its affiliation to remains and artifacts, the campus and the committee chair determine when there is sufficient evidence for the committee to review the tribe’s claim. Berkeley’s practice deprives the other committee members of a voice in determining when there is sufficient evidence, as well as awareness of instances when tribes and the committee chair disagree about the sufficiency of evidence. As a result, the committee generally makes formal decisions only on claims with sufficient evidence for approval, and the campus rarely formally denies claims that lack sufficient evidence.

Berkeley indicated that an outright denial of a tribe’s claim might damage the campus’s relationship with that tribe and that either the campus or tribe could identify additional evidence in the future that would support the affiliation claim. However, in one of the five affiliation claims we reviewed from Berkeley, the tribe requested a written decision from the campus committee after the campus and committee chair informed it that the tribe’s evidence was insufficient. The tribe then received the written decision. In response, the tribe asserted that the campus had not fairly considered the evidence it had submitted. In this instance, the campus committee agreed with the campus and committee chair’s conclusion that there was not sufficient evidence to support the affiliation. However, there is no guarantee that the committee will always agree with the campus’s decisions or that tribes are even aware that they may request a formal review of their claim by the committee, instead of having to continue to work with the campus to provide additional evidence. Further, if the campus and the committee chair determine the evidence is not sufficient, the campus does not have a formal process for the committee to review the quality or quantity of the existing evidence or periodically assess pending claims. As a result, the committee lacks assurance as to whether the campus is fairly evaluating the evidence.

University Policy Allows Drastic Variation in Campus Practices

The Office of the President has provided campuses with little guidance on how to implement the requirements of NAGPRA and CalNAGPRA, a shortcoming that has led to campuses taking very different approaches when determining whether to return remains and artifacts to tribes. The Office of the President issued its current systemwide NAGPRA policy in 2001, and that policy provides minimal guidance beyond describing the federal regulations the campuses must follow for repatriations and affiliations. For example, the 2001 policy lists acceptable types of evidence but gives no guidance on how to evaluate that evidence. Of further concern is that the Office of the President did not update the systemwide policy in 2002 when CalNAGPRA became effective, nor did it update it when the federal government amended federal regulations to create the disposition process in 2010, which allows tribes to file claims for remains and artifacts that campuses are unable to affiliate with a specific tribe. According to the Office of the President, the fact that it did not update the policy was not the result of a decision; rather, it preferred to wait until significant changes were necessary before going through the lengthy policy review process. It further stated that campuses and the systemwide committee were kept informed of changes to NAGPRA requirements and were aware that they needed to comply with current law. However, we disagree with this approach given that the addition of the disposition process significantly expanded the potential for returns and the disposition process has different requirements than repatriations do.

The minimal guidance from the Office of the President permits considerable differences in NAGPRA implementation between campuses, likely affecting the number of remains and artifacts that campuses have returned to tribes. As Figure 3 shows, the three campuses we reviewed have each returned different percentages of their NAGPRA collections. Further, as several previous examples demonstrate, the campuses’ varying practices have resulted in delays, sometimes lasting years, for returns. The Legislature recognized a history of inconsistency between campuses and amended CalNAGPRA in 2018 to create additional requirements for the university, including a requirement for a more comprehensive systemwide policy. The amended CalNAGPRA requires the university to create consistency in specific aspects of NAGPRA implementation. As we describe in the next section, the Office of the President is now revising its systemwide policy to meet the amended requirements of CalNAGPRA. Those revisions will address some of the inconsistencies we observed across campuses, such as establishing procedures for communicating and following up with tribes during dispositions and encouraging campuses to provide regular reports to their campus committees about pending claims.

Figure 3
Berkeley and Davis Have Returned Only a Small Portion of Their NAGPRA Inventories

The University’s Draft of Its NAGPRA Policy Fails to Standardize Campus Procedures as the Legislature Intended

In its 2018 amendment of CalNAGPRA, the Legislature required the university to develop clear and transparent systemwide policies regarding the implementation of NAGPRA by January 1, 2020. CalNAGPRA required the university, in developing those policies, to consult with California tribes that appear on a contact list of California tribes that the NAHC maintains. CalNAGPRA also required the university to submit a draft policy to the NAHC for its review and comment by July 1, 2019. The Office of the President created a work group in October 2018 to develop the policy. Figure 4 illustrates a timeline of the university’s development of the draft policy, including its consultation with the NAHC and tribes. The Office of the President notified the NAHC in late June 2019 that the draft would not be ready for review as required, and as the timeline shows, the Office of the President missed the statutory deadline. Although the Office of the President provided the NAHC with a confidential draft of its policy in early July 2019, the NAHC stated that its commissioners could not discuss the policy during their meetings until the university publicly released the draft policy in August 2019. The Office of the President distributed a draft policy to its campuses, the NAHC, and tribes in California in late August 2019, and it invited these stakeholders to submit comments. It stated that its intention was to incorporate this feedback by December 15, 2019 into its final policy, which it would issue by December 31, 2019.

For several months after the Office of the President distributed the draft policy, the NAHC and the Office of the President intermittently communicated about the NAHC’s concerns with the policy. For example, in October 2019, the NAHC informed the Office of the President that it would be unable to submit comments on the policy by the Office of the President’s deadline of November 15, 2019, because of the policy’s length and complexity. Then, in a December 2019 letter to the Office of the President, the NAHC asserted that the university had not performed the required level of outreach or sought meaningful consultation with California tribes in a manner consistent with CalNAGPRA. The NAHC also stated that when the Office of the President provided the draft to tribes for comment, it did not allow adequate time to consider or respond to their feedback. The NAHC urged the Office of the President to delay implementation to July 1, 2020, so that it could reshape the draft policy in collaboration with the NAHC and with California tribes in a way that would ensure that the Office of the President was conducting meaningful consultation and addressing these entities’ concerns. As Figure 4 shows, the Office of the President agreed to miss the January 1, 2020, statutory deadline and push back the implementation of the final policy, which it now expects to implement by July 31, 2020.

Figure 4
The University Failed to Meet Statutory Deadlines for Its NAGPRA Policy

Source: State law and documentation and information provided by the Office of the President.

In its efforts to address the NAHC’s concerns, the Office of the President has conducted additional outreach to tribes. It scheduled and conducted four half-day open forums around the State to engage with any tribes that chose to participate. On the same days as the forums, the Office of the President dedicated time for one-on-one meetings with tribal leaders from California. The Office of the President stated that since January 2020, it has also met with and obtained feedback from the NAHC. The Office of the President stated that it intends to be as responsive as possible to feedback from the NAHC and the tribal forums. In April 2020, the Office of the President distributed a new draft to stakeholders for final comments. When we asked the NAHC about the Office of the President’s additional outreach in 2020, it stated that although the Office of the President had made efforts to increase tribal outreach, that outreach did not reflect meaningful consultation with tribes. Specifically, it had expected the university to formally respond to the written feedback tribes provided. Further, the NAHC indicated that it had asked to participate in the Office of the President's work group in making policy revisions, but the Office of the President denied this request. The Office of the President stated that the NAHC’s executive secretary had the opportunity to vote on the selection of members for the work group.

Our review of the draft policy from April 2020 found that it would not create consistency across campuses as state law intends. When it amended CalNAGPRA, the Legislature recognized the campuses’ history of inconsistently applying NAGPRA and CalNAGPRA, and it required the university to adopt systemwide policies regarding the treatment of Native American remains and artifacts. For example, state law requires those policies to include systemwide requirements for demonstrating that remains and artifacts are affiliated with a tribe. As we discuss in the previous section, the basis for affiliation determinations currently varies from campus to campus. The draft policy’s section covering affiliation builds on the federal requirements and the Office of the President’s previous guidance by instructing campuses to review evidence for credibility and the possibility of affiliating remains and artifacts to more than one tribe. Although the policy addresses the grounds on which a campus may make an affiliation decision, it does not create a standardized process for doing so. For example, the policy could include documentation standards for campuses to follow when evaluating evidence they receive from tribes and require campuses to forward documentation to their campus committees when they are reviewing claims.

Additionally, the draft policy does not create sufficient oversight of the campuses’ affiliation and repatriation activities, including oversight by the systemwide committee. The draft policy gives the systemwide committee the discretion to request reports from campuses to conduct oversight. These reports could include information such as the amount of time a campus took to process a claim, a summary of the evidence the campus used for a claim, or the campus’s consultation history with a tribe. The committee could then make recommendations for revisions to the systemwide policy to the Office of the President. However, we do not believe these reports will provide adequate oversight because the policy does not require campuses to submit regular reports on activities such as affiliation, repatriation, and disposition decisions. Further, any reports the systemwide committee may request may not facilitate oversight due to inconsistent reporting practices by campuses. The draft policy requires the systemwide committee to make recommendations for consistency in the level of information campuses include in their reports. However, until it does so, the lack of consistent information from campuses and limited reporting requirements will impede the systemwide committee’s ability to identify differences in how the campuses implement NAGPRA and recommend revisions to university policy that will create the consistency the Legislature intended.

The Membership of the Systemwide and Campus Committees Does Not Comply With State Law

The university is not adequately complying with state law that requires the systemwide committee and the campus committees to have certain tribal representation. In its 2018 amendment to CalNAGPRA, the Legislature required the university to create the systemwide and campus committees, although the three campuses we reviewed and the Office of the President maintained committees before 2018 to review NAGPRA claims. The Legislature further amended CalNAGPRA in 2019 to add an additional tribal representative to the systemwide committee. According to the author of the 2018 amendment, the committees on some campuses had historically been composed nearly completely of members with certain research interests, which excluded tribal voices and views from scholars in fields such as Native American studies. Each of the campuses had formed their committees under the Office of the President’s 2001 policy, which did not specify tribal membership requirements or the size of the committees, leading the campuses to have varying numbers of members and varying degrees of representation on their committees. The 2018 and 2019 legislative amendments to CalNAGPRA require the committees to have equal representation between university members and members of California tribes, which helps ensure that tribes have equal input on repatriation decisions.

State law now requires that each campus committee have three university members and three tribal members, as Figure 5 shows. Two of the tribal members should be from federally recognized California tribes and one from a California tribe that is not federally recognized. If no qualifying members of a California tribe are available, the law allows the university to appoint members from tribes outside California. However, considering the large number of California tribes, it is unlikely that no qualifying members would be available. The systemwide committee has similar membership requirements but also includes a nonvoting member from each campus that is subject to NAGPRA.

Figure 5
CalNAGPRA Establishes Required Campus and Systemwide Committee Membership

Despite these requirements, the campus committees and the systemwide committee do not have the required members from California tribes. The committees have some tribal members, as Table 1 shows. However, although Berkeley’s committee has six tribal members, none of these members are associated with a California tribe. Similarly, Davis has three tribal members, but only two are associated with a California tribe. Los Angeles’s committee has six tribal members, including one member from a California tribe that is not federally recognized. However, it only has one of the two required members of federally recognized California tribes. The remaining three tribal members are from tribes outside of California. Finally, the systemwide committee has two tribal members, but only one is associated with a California tribe. Although state law allows members from tribes outside of California to serve on committees, it only does so when no members from California tribes are available to serve. The NAHC stated that members from a California tribe would have been available to serve on campus committees; however, as we describe later in this section, the campuses did not request the NAHC to nominate California tribal members.

Table 1
The Campus and Systemwide Committees Lack the Required California Tribal Representation

	NAGPRA COMMITTEE
	BERKELEY	DAVIS	LOS ANGELES	SYSTEMWIDE
Total committee members	11	14	9	7
University members without tribal affiliation	5	11	3	5
University members with tribal affiliation*	6	1	4	1
Tribal members not affiliated with the university*	0	2	2	1
Total tribal members*	6	3	6	2
Does the committee have equal representation between university and tribal members?	No	No	No	No
Members from a federally recognized California tribe†	0 of 2	1 of 2	1 of 2	0 of 3
Does the committee have the required numbers of members from a federally recognized California tribe?‡	No	No	No	No
Members from a California tribe not federally recognized	0 of 1	1 of 1	1 of 1	1 of 1
Does the committee have the one required member from a California tribe not federally recognized?‡§	No	Yes	Yes	Yes

Further, the campus committees and the systemwide committee currently have more voting members from the university than tribal members. For example, Berkeley has 11 members on its committee, each of whom is a member of the university but only six of whom are also members of tribes. Further, the systemwide committee has seven members, six of whom are members of the university, but it only has two members from tribes. As a result, university member votes often significantly outnumber tribal member votes on the repatriation decisions that the campus and systemwide committees make. Until the three campuses and the Office of the President revise the membership of their committees, they cannot ensure that they are sufficiently involving all appropriate stakeholders in repatriation decisions and incorporating sufficient California tribal perspectives.

According to the campuses and the Office of the President, they have not reformed their committees to comply with state law because they are waiting for the university’s final NAGPRA policy, which will include updated information about committee membership. The campuses noted that it might be difficult to find members who meet the requirements in state law, such as members with graduate degrees in specific fields. State law also requires the university members to have a minimum of five years’ experience working in their field of study, and it gives preference to members who have demonstrated, through their professional experience, the ability to work in collaboration with Native American tribes successfully on issues related to repatriation or museum collection management. In contrast, the campuses and the Office of the President expect the new policy to allow flexibility in selecting committee members as long as the exceptions promote repatriation. Specifically, the Office of the President stated that the policy will provide a path for exceptions that will address situations in which the rigidity of CalNAGPRA could hamper selection of the most qualified members. However, we find this explanation for delay unreasonable given that state law adequately specifies the required committee membership and even balance between university and tribal members, and permits flexibility to select retired university members if no members of the university meet the criteria in state law.

Finally, state law requires campuses and the Office of the President to appoint all committee members upon nomination by the NAHC, and the NAHC recently developed a process for nominating members of these committees. According to the NAHC, it has not nominated any members because the campuses and the Office of the President have not taken action to form these committees, and therefore have not yet requested nominations from the NAHC. If the university had made such requests, the NAHC stated it had established a general process for identifying and appointing representatives from California tribes for various boards, commissions, and advisory bodies, but did not have a process for identifying and nominating NAGPRA committee members. In response to our inquiry, the NAHC developed a process for nominating committee members in April 2020 so that it can make nominations when the university requests them.

Campuses Lost Some Remains and Artifacts Because They Poorly Managed Their Collections in the Past

Before the implementation of NAGPRA in 1990, the campuses lacked adequate controls and oversight related to access to their museum collections of Native American remains and artifacts. As a result, each of the three campuses we reviewed had missing NAGPRA remains and artifacts. For example, from the 1950s through the 1980s, Los Angeles used a sign-out sheet and honor system for students and professors who wanted to borrow from its museum for research, but those individuals did not always return what they borrowed to the collection. Berkeley and Davis cited the same problems, where unrestricted access to inventory led to stolen and misplaced remains and artifacts. For example, in some cases at Davis, faculty and graduate students accessing a collection for research took remains or artifacts with them after leaving the university.

Additionally, the campuses each indicated that they lacked controls for keeping track of what they had loaned. For example, Berkeley noted instances of loaning remains or artifacts to institutions overseas or exchanging them with other museums in the 1920s through the 1960s, but it did not always maintain records of these transfers. Davis explained that before the 1980s, it did not have a process for tracking loaned remains or artifacts, so some loans may not have been documented and the remains or artifacts were never returned. The inadequate recordkeeping of loans and exchanges resulted in losses that the campuses did not discover until NAGPRA required them to take inventory of their collections in the 1990s.

By the 1990s, each of the three campuses we visited had begun establishing processes to protect its Native American remains and artifacts from being lost or stolen. According to standards issued by the American Alliance of Museums, museums are expected to implement appropriate measures to ensure the safety and security of their collections. During our review, we observed that each of the campuses now has strict physical controls for accessing its NAGPRA collections. For example, each campus stores NAGPRA remains and artifacts in locked rooms with access limited to authorized staff. Additionally, Berkeley and Davis established processes for tracking loaned remains and artifacts and ensuring that borrowers return what they borrow. Los Angeles established a process for requesting a research visit to its museum to view remains or artifacts but stated that it does not loan from its NAGPRA-related collection. Because we found that each campus’s current processes for protecting its NAGPRA collections appear adequate, it is likely that the losses to the collections occurred decades ago, when the campuses lacked adequate safeguards.

Although the three campuses have maintained records of their missing remains and artifacts, only Berkeley could tell us how many items were missing from its NAGPRA collection. Each of the three campuses track NAGPRA remains and artifacts electronically, but only Berkeley centrally tracks whether something is missing. According to documentation that Berkeley provided to us, the campus has identified nearly 180 missing or lost remains or artifacts. At Los Angeles and Davis, the campuses maintain records of missing remains and artifacts in individual files, but because neither campus centrally tracks this information, they could not tell us the total number of items missing. When we inquired about some of the missing remains and artifacts at each campus, the campuses generally could provide little information about how they went missing because of poor recordkeeping.

Although all three campuses identified missing remains and artifacts during the initial inventories they completed in the 1990s to 2000, only Davis and Los Angeles could demonstrate that they informed tribes of what was missing. After Congress enacted NAGPRA in 1990, it required each campus to compile a list describing its remains and artifacts subject to NAGPRA and provide that list to tribes that were or might be affiliated. Both Davis and Los Angeles identified missing remains and artifacts on the NAGPRA inventories that they sent to tribes. However, Berkeley does not know what information it provided to tribes during that initial inventory process. Although it indicated that it might have informed the tribes of missing remains or artifacts, it has no documentation to demonstrate it did so.

When tribes are not notified of missing remains and artifacts, they may invest time in initiating repatriation claims for items that a campus cannot return, which may upset tribal communities. In fact, during Berkeley’s review of a tribe’s November 2016 request for the repatriation of certain remains, the campus noted that the remains of a child in its collection that was included in the requested remains had been missing for more than 20 years. According to a letter from that tribe to the campus, the fact that the remains were missing was deeply distressing for its community because not only was the grave of the child violated, but the child’s remains could be lost in a closet, attic, or desk drawer of a researcher. As this situation illustrates, when Berkeley notifies tribes of missing remains and artifacts only after the initiation of a repatriation claim, it further deteriorates the important relationships between the campus and tribal communities. These are relationships that Berkeley has told us it seeks to maintain.

The NAHC Has Not Published a List of Tribes That California Recognizes

CalNAGPRA requires the NAHC to create a list of California tribes that will, when completed, allow more tribes to submit repatriation claims. When the Legislature passed CalNAGPRA, it intended the legislation to provide a mechanism for tribes that are not federally recognized to pursue repatriation of remains and artifacts. This mechanism requires the creation of a list of tribes not federally recognized that are eligible to participate in the CalNAGPRA process. Although more than 100 federally recognized tribes in California can pursue repatriation through NAGPRA and CalNAGPRA, dozens of tribes in California do not have this recognition and cannot currently pursue repatriation. Once the NAHC completes a list of tribes that meet the Legislature’s criteria for a California tribe, the tribes on that list will have the same ability as federally recognized California tribes to submit repatriation claims to agencies, such as campuses, that possess remains and artifacts eligible under CalNAGPRA. However, until the NAHC completes this list, some California tribes that might otherwise be eligible to submit claims for repatriation under CalNAGPRA cannot do so.

The NAHC’s responsibilities under CalNAGPRA are fairly recent. The Legislature established the NAHC in 1976 to manage Native American cultural resources in the State, and it was not initially involved in NAGPRA or CalNAGPRA. When CalNAGPRA was passed in 2001, the law created a new separate oversight entity, the Repatriation Oversight Commission, and tasked it with creating the list of California tribes not federally recognized that would be eligible to request repatriation under CalNAGPRA. However, for reasons we were not able to discern, the Legislature never funded the Repatriation Oversight Commission. As a result, the Repatriation Oversight Commission was briefly formed, only meeting two times in 2004, and the creation of the list of California tribes went unaddressed. In 2015 the Legislature abolished the Repatriation Oversight Commission and reassigned its responsibilities, including the creation of the list of California tribes, to the NAHC.

Since the enactment of CalNAGPRA, the number of tribes eligible for inclusion on the list has dwindled rather than increased. One criterion for placement on the list does not provide the NAHC any discretion. Specifically, CalNAGPRA limits eligibility for the list to only those California-based tribes that are in the process of obtaining federal recognition by petitioning the U.S. Department of the Interior. In 2015 the U.S. Department of the Interior changed its regulations that govern the process tribes must follow when petitioning for federal recognition. These changes established a phased review process intended to streamline the review. According to the NAHC, after the regulations were changed, tribes may have withdrawn their petitions or been removed from the petitioning process. In 2013—two years before the U.S. Department of the Interior amended its regulations as described above—81 California tribes were in the process of petitioning for federal recognition. However, as of March 2020, just four California tribes were actively petitioning for federal recognition. According to the U.S. Department of the Interior’s website, of the 77 tribes that are no longer petitioning for federal recognition, none received recognition and only one was formally denied recognition, supporting the NAHC’s contention that tribes may have withdrawn from the process.

The decrease in the number of California tribes petitioning for federal recognition in turn reduced the number of tribes that are eligible for inclusion on the NAHC’s list of California tribes. Because only four tribes are currently eligible for inclusion on the list the NAHC must create, that list will not significantly expand the number of tribes that are eligible to make repatriation claims. The limited expansion of tribes that can pursue repatriation reduces the impact the Legislature intended CalNAGPRA to have, which was to provide a means for both California tribes that are federally recognized and those not federally recognized to submit repatriation claims for the return of remains and artifacts that may belong to them.

Further, we found that the NAHC has not taken the actions necessary to establish the list of tribes that California recognizes. The current executive secretary of the NAHC, who started in February 2018, explained that in April 2018, she initiated a competitive bidding process to engage a consultant to develop a CalNAGPRA implementation plan. The consultant was expected to develop regulations and internal procedures for implementing CalNAGPRA, which would address developing the list of tribes, receiving repatriation claims, and mediating disputes. However, the bidding process was initially unsuccessful, and the NAHC did not contract with a consultant until June 2019.

The executive secretary further stated that around this time, the NAHC began to move forward on publishing the list of tribes that California recognizes; however, the NAHC has concerns—which tribes have also expressed—about the current definition of a California tribe in state law. As we describe above, this definition will limit the NAHC to adding only four tribes to the list, excluding many tribes that are not federally recognized from making repatriation claims. As a result, the NAHC held a public hearing in October 2019 to better understand the issues related to the definition and called for written feedback from tribes. More recently, the NAHC became aware that tribes close to the issue were working with the Legislature to propose a solution that would expand the definition of a California tribe in CalNAGPRA to allow it to officially recognize a greater number of tribes. If these efforts are not successful, the executive secretary noted that the NAHC would move forward with publishing the list after the legislative session ends in August 2020.

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 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 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 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 November 2020.

To increase the transparency of the campuses’ NAGPRA collections, the Office of the President should determine whether its campuses have informed tribes about all known missing remains and artifacts no later than August 2020, and if campuses have not done so, determine an appropriate method of communicating with tribes about missing remains and artifacts.

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.

We conducted this performance audit under the authority vested in the California State Auditor by Government Code 8543 et seq. and in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Respectfully submitted,

ELAINE M. HOWLE, CPA
California State Auditor

June 11, 2020

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