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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

Introduction

Background

The U.S. Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990 to protect Native American gravesites and to create a process for government agencies and museums (agencies) to manage and return certain Native American human remains and cultural objects (remains and artifacts) to the tribes that have ancestral, cultural, or geographic links to them. When enacting NAGPRA, Congress acknowledged that those remains and artifacts removed from federal or tribal lands belong to Native American tribes. The text box describes the types of remains and artifacts that NAGPRA covers, as well as related key terms. NAGPRA applies to tribes that are recognized by the U.S. Department of the Interior, the entity responsible for recognizing tribes that are eligible to receive services provided by the federal government.  ¹ NAGPRA also applies to Native Hawaiian organizations;
however, our report focuses on Native American tribes.

During the 1990s, NAGPRA required each agency that controlled Native American remains, funerary objects, or cultural objects to have compiled an inventory of specified items by certain dates. To complete this inventory, an agency had to consult with each tribe that had a possible cultural or geographical link to the remains or artifacts to share and obtain information. The agency then evaluated the information from this consultation along with all other evidence, including biological, archeological, anthropological, geographic, kinship, linguistic, folklore, and historical evidence. Based on this evaluation, the agency determined whether it could reasonably trace a relationship between the remains or artifacts within its possession and a specific tribe, a process known as affiliation. After completing its inventory, each agency had to send information from the inventory to tribes for which it had established affiliation. Subsequently, the tribes could decide whether to submit claims for the return of the remains and artifacts with which they were affiliated.  ² NAGPRA applies technical terms to different categories of Native American items and processes for their identification and return. For example, federal regulations define "culturally unidentified items" as those that have not been affiliated to a tribe. We refer to these remains and artifacts as "not affiliated." To communicate our findings succinctly, this report consolidates many of these terms.

Each agency also had to report its inventory to the national NAGPRA program (national program), which is administered by the National Park Service, a bureau of the U.S. Department of the Interior. The national program is responsible for performing various activities, including drafting regulations to implement NAGPRA, administering grants to museums and tribes for fulfilling NAGPRA, assisting excavations that discover remains or artifacts on federal or tribal land, and maintaining a database of all items agencies reported to it that are subject to NAGPRA. Further, it supports the national NAGPRA Review Committee (national committee), which monitors and reviews the implementation of NAGPRA across the nation. For example, the national committee is to monitor the inventory and identification process, consult on the development of the program’s regulations, and facilitate the resolution of disputes between agencies and tribes.

Since 1982 state law has required that a Native American’s most likely descendant be contacted whenever Native American remains are discovered, so that the descendant may recommend appropriate treatment of the remains and related artifacts. In addition, since 2015 state and local public agencies that have principal responsibility over specified construction projects subject to the California Environmental Quality Act must follow certain requirements when they discover Native American remains and artifacts. Specifically, they are required to avoid damaging tribal cultural resources when feasible and to consult with Native American tribes located in the area of a project about measures to preserve or mitigate impacts on such resources. Therefore, agencies in California are no longer expanding their collections of remains and artifacts covered by NAGPRA through archaeological activities.

Tribes Reclaim Their Ancestors’ Remains and Artifacts Through Repatriation and Disposition

NAGPRA requires agencies in possession of Native American remains and artifacts to respond to tribes’ claims to have those remains and artifacts repatriated to them. These agencies include campuses in the University of California (university) system, which generally maintain their NAGPRA collections through on-campus museums that are not open to the public. At the three campuses we reviewed—Berkeley, Davis, and Los Angeles—a designated campus NAGPRA official oversees NAGPRA implementation. Each campus has also established a NAGPRA committee to review repatriation claims in coordination with the campus NAGPRA official. In turn, the university’s Office of the President (Office of the President) manages NAGPRA activity across all of its campuses with the help of the Office of the President's NAGPRA committee (systemwide committee) made up of representatives from campuses subject to NAGPRA and one tribal representative.

Federally recognized tribes can submit repatriation claims to campuses for the return of their ancestors’ remains and artifacts. The text box summarizes the major requirements for remains and artifacts to be eligible for repatriation. After a campus affiliated remains or artifacts with a tribe or tribes during the preparation of its initial inventory in the 1990s, the campus was required to notify tribes and publish a notice in the Federal Register about the affiliated remains and artifacts. At that time, other tribes had 30 days to contest the campus’s affiliation determination. If a tribe did not contest the affiliation within 30 days, the campus was required to return the remains or artifacts after receiving the tribe’s repatriation claim. Several of the claims we reviewed were for such remains or artifacts.

However, in many instances, campuses did not affiliate remains or artifacts with a tribe during their initial inventories. Tribes can request consultations with these campuses to learn about their collections and determine whether they want to make repatriation claims by requesting affiliation to specific remains and artifacts. Federal law requires a campus to base its determination of affiliation with a tribe on a preponderance of the evidence, meaning that the remains and artifacts are more likely than not affiliated with the noted tribe. NAGPRA requires a campus to use various types of evidence to support these determinations, including oral history, geography, and anthropological evidence.

However, the affiliation process can be lengthy. As Figure 1 shows, a campus can repeatedly and indefinitely require a tribe to submit additional evidence demonstrating that remains and artifacts are affiliated with it, a concern we describe further in the Audit Results. Further, to ensure that it receives all relevant information, the campus must contact and consult with other tribes that may have a relationship to the remains and artifacts in question. This consultation allows the other tribes to decide whether they believe the remains and artifacts are affiliated with them and, if so, to provide evidence of their historical relationship and to submit a claim for repatriation. If the campus determines that a preponderance of evidence supports affiliation to a tribe and the campus committee agrees, the campus sends the claim to the systemwide committee for its review. The systemwide committee provides a recommendation to the university president. If the university president (or his or her designee) approves the affiliation, the campus has to post in the Federal Register a notice about its affiliation determination and wait 30 days before returning the remains or artifacts, unless another tribe makes a claim.

Figure 1
Campus's Processes for Determining Whether Remains and Artifacts That Are Affiliated With a Tribe Can Be Lengthy

Source: Federal regulations, Office of the President’s 2001 policy, campus documents, and interviews with campus officials.

In some instances, campuses have been unable to clearly identify to which tribe remains or artifacts belong. In these cases, tribes seeking possession of the remains or artifacts must submit a claim through disposition. As Figure 2 shows, the university’s process for returning remains and artifacts through disposition differs somewhat from its process for repatriation. For example, because more than one tribe may have claimed the same territory over time, the disposition process includes a step for the campus to communicate with each tribe from whose land the remains or artifacts were removed and then to attempt to develop a disposition that is agreeable to all of these tribes. In addition, a tribe can contest a proposed disposition to another tribe after a campus publishes a notice in the Federal Register if the tribe believes that the items belong to it. The campus and the tribes are expected to resolve any disputes through informal negotiations. If no other tribes submit a claim within 30 days of a notice, the campus typically transfers the remains and artifacts to the requesting tribe. When campuses return remains and artifacts either through repatriation or disposition, tribes may choose to rebury the remains because some tribes believe that their ancestors’ spiritual journeys have been disrupted by their exhumation and that reinternment allows them to rest.

Figure 2
The University's Decision to Use Repatriation or Disposition Is Dependent on Whether It Has Determined Tribal Affiliation for Remains and Artifacts

Tribes Can Dispute Campus Decisions on Affiliation, Repatriation, and Disposition

Tribes that disagree with campus decisions have various options for dispute. Specific decisions a campus makes may be grounds for dispute, such as determinations of affiliation or of the eligibility of remains and artifacts for repatriation. Tribes can bring such disputes to the national committee, which may provide advice to both parties on how to resolve the dispute. Tribes may also dispute decisions through the systemwide committee, or they may simultaneously pursue disputes both with the national and systemwide committees. In addition to disputes, tribes may also bring complaints about a campus’s compliance with NAGPRA to the national program. The national program may then investigate that campus. Thus far, only one repatriation decision by a campus has been disputed by a tribe. That tribe also brought the dispute to the national committee.

Under state law, the California Native American Heritage Commission (NAHC), a state entity that manages Native American cultural resources in California, also has the authority to mediate disputes over repatriation claims. However, no tribes have used the NAHC to mediate a dispute under NAGPRA’s California counterpart, CalNAGPRA, which we describe in the following section.

CalNAGPRA Creates Additional Opportunities for Tribes to Obtain Remains and Artifacts and Increases Oversight of Campuses

CalNAGPRA covers California tribes, including both federally recognized tribes in California and those California tribes that are not recognized by the U.S. Department of the Interior. Many California tribes are not currently federally recognized in part because the federal government cancelled its recognition of many of them beginning in the 1940s during its efforts to integrate Native Americans into American society. Specifically, according to a publication on the National Park Service’s website, the government decided after World War II to forcibly assimilate Native Americans into mainstream society by terminating the federal recognition of tribes and the federal government’s accompanying obligations to them, and by relocating Native Americans from rural reservation communities to urban areas. Enacted in 2001, the intent of CalNAGPRA is to provide a mechanism for California tribes that do not have federal recognition to submit repatriation claims to state agencies, including university campuses. CalNAGPRA describes the process tribes must use to initiate a repatriation claim under state law and to resolve any subsequent disputes through the NAHC. However, tribes have generally not used these parts of the law because the NAHC and the university have not fully implemented them, as we describe in the Audit Results.

The Legislature amended CalNAGPRA in 2018 in response to allegations from stakeholders, including tribes, that the university had a poor record of completed repatriations and that participation by tribes in the repatriation process had been limited. According to the amendment’s author, these allegations focused primarily on Berkeley’s lack of significant repatriations from its NAGPRA collection over the 20 years since it completed its inventory of Native American remains and artifacts. The 2018 amendment required the Board of Regents of the University of California (Board of Regents), or its designee, to implement a systemwide policy by January 2020 regarding the appropriate treatment and repatriation of Native American remains and artifacts consistent with NAGPRA and CalNAGPRA. The university’s Office of the President is currently drafting a systemwide policy on behalf of the Board of Regents.

The amendment also required that the Board of Regents, or its designee, establish the systemwide committee and that each campus subject to NAGPRA establish a campus committee. Each of the university campuses in the text box needed to have a campus committee beginning in January 2019. Although the campuses were not required to have committees before the amendment, the three campuses we reviewed and the Office of the President maintained committees before 2018 to review NAGPRA claims. According to the amendment, each committee must have adequate representation from California tribes. Each campus committee must have three California tribal representatives; however, if no representatives from a California tribe are available, a campus can appoint members from tribes located outside the State. The campus committees must also have three members from the university with backgrounds in related fields of study, such as archeology, anthropology, or history, with a focus on California. The systemwide committee has similar requirements, and in addition, it must have a nonvoting member from each campus subject to NAGPRA. Finally, the Office of the President and each campus must appoint committee members based on nominations from the NAHC.

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