Report 2019-047

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University of California
Native American Heritage Commission

California State Auditor's Comments on the Response From the Native American Heritage Commission

University of California

May 21, 2020

Ms. Elaine M. Howle
California State Auditor
621 Capitol Mall, Suite 1200
Sacramento, California 95814

Dear State Auditor Howle:

Thank you for the opportunity to review and respond to the draft audit report, Native American Graves Protection and Repatriation Act: The University of California Is Not Adequately Overseeing the Return of Native American Remains and Artifacts. Your recommendations will better enable the University to ensure consistent implementation of federal and State law, and even the University's own policies. Below are the Universitys responses to the specific recommendations in the report directed to the University of California Office of the President.

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 repatriation policy no later than August 2020.

We agree with this recommendation. Though variances across campuses do not necessarily mean non-compliance with the law, we do plan to enact policy that promotes consistency in achieving the goal of repatriation throughout the University. The University expects to issue the final 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.

We agree with this recommendation and will include this requirement in the new policy, with the first report due to the President and systemwide committee 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.

We agree with this recommendation, and acknowledge the importance of ensuring tribal perspectives are appropriately represented in repatriation decisions. We will appoint reconstituted committees no later than November 2020.
To increase the transparency of the campuses' NAGPRA collections, the Office of the President should determine whether 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.

We agree with this recommendation and will determine whether campuses have informed tribes about all human remains and artifacts known to be missing from campus held NAGPRA collections no later than August 2020. If campuses have not done so, we will determine an appropriate method of communicating with tribes about missing remains and artifacts.

The University understands the need for a stronger policy to better effectuate repatriation of Native American human remains and cultural items, and to improve our relationships with Native American communities. The University has been working hard over the last two years to make improvements in this area, and we anticipate that the recommendations and observations in your report will contribute further to helping us achieve these goals. We appreciate your team's professionalism and cooperation during the audit process, and the time taken to identify improvements.

Yours very truly,

Janet Napolitano
President

cc:	Executive Vice President and Provost Michael Brown Senior Vice President and Chief Compliance and Audit Officer Alexander Bustamante Chief of Staff to the President and Chief Policy Advisor to the President Jenny Kao

Native American Heritage Commission

May 21, 2020

Elaine Howle, CPA
California State Auditor
621 Capitol Mall, Suite 1200
Sacramento, CA 95814

Dear Ms. Howle:

The Native American Heritage Commission (Commission) appreciates the opportunity to respond to the draft audit report regarding the University of California's (UC) compliance with repatriation laws as required under AB 2836 (Report 2019-047.)

THE AUDIT DOES NOT EVALUATE THE UC'S ASSESSMENT OF CULTURALLY UNIDENTIFIED REMAINS

AB 2836 requires the State Auditor to conduct an audit "regarding the University of California's compliance with the federal Native American Graves Protection Repatriation Act (25 U.S.C. Sec. 3001 et seq.) and this chapter." (Health & Saf. Code, § 8028.) The Commission is particularly concerned about the UC's extensive collection of culturally unidentified items (CUI). The Legislature found that at UC Berkeley, home to one of the nation's largest Native American collections, two-thirds of its collection had been designated as culturally unidentified. Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(12).) The Legislature documented concerns about the UC's past compliance with repatriation laws, including the absence of required Native American consultations which "has resulted in some University of California campuses excluding or limiting the participation of stakeholders who could bring valuable knowledge to the repatriation process." (Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(9).)

Nothing in the audit addresses the UC's existing and past compliance with CalNAGPRA and federal NAGPRA when it relied so heavily on the designation of CUI in retaining its collections, including whether it had conducted adequate consultations necessary to determine cultural affiliation under federal and state law. (Health & Saf. Code, §§ 8012, subd. (f), 8013, subd. (a)(2); 43 C.F.R. § 10.11(b), (4), (5), (6).)

In conjunction with CUI, federal NAGPRA requires the UC to affirmatively offer to transfer control of remains to tribes under a descending priority list. (43 C.F.R. § 10.11(c)(1).) The Legislature documented that the UC's current repatriation policy fails to comply with this law. (Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(9).)

Here again, nothing in the audit addresses UC's existing and past compliance with section 10.11 in offering to repatriate items under its disposition process.

INACCURACIES AND OMISSIONS

NAGPRA

The draft report states that a national NAGPRA committee "monitors and reviews the implementation of NAGPRA across the nation. For example, the national committee monitors the inventory and identification process, consults on the development of the program's regulations, and facilitates the resolution of disputes between agencies and tribes." (Draft report at pp. 4-5.) No citation is provided for this statement and it is not completely accurate. While the National Review Committee may monitor the performance of agencies and museums, as well as assist in resolving disputes, it does not have a comprehensive program to do so in all cases. (43 C.F.R. § 10.16(a).) The draft report fails to provide examples where this committee has actually monitored UC compliance with NAGPRA to ensure its compliance. In the vast majority of cases, agencies implement and oversee their own compliance with NAGPRA which the Legislature has documented has been a systematic problem for the UC. It would be a misimpression to suggest that this committee will be overseeing the UC's latest efforts to comply with NAGPRA.

Reliance on Inapposite Statutes

The draft report cites to pre-NAGPRA state statutes governing the discovery of remains and items on private property, as well as to AB 52 governing the assessment of tribal resources in conjunction with environmental review under the California Environmental Quality Act (CEQA). (Draft report at p. 5.) These statutes have no relevance to repatriation under federal and state NAGPRA and their discussion is unnecessary and confusing.

Archeological Activities

The draft audit states that “agencies in California are no longer expanding their collections of remains and artifacts covered by NAGPRA through archaeological activities.” (Draft report at p. 5.) No factual support is provided for this proposition and concerns still persist that agencies (particularly universities) may still be performing archeological activities which may include retaining Native American items, including remains and related cultural items. The Commission does not see a need to include this statement for purposes of the audit.

Misstatements and Misleading Statements About the Repatriation Process

Inadequate Description of the Repatriation Process Misses Critical Concerns Raised by the Legislature

The draft report states in its heading and text that tribes simply reclaim remains and items through repatriation and disposition. (Draft report at p. 5.) It claims that the UC responds "to tribes' claims to have remains and artifacts repatriated to them." This is followed by another summary offset from the main text showing only three requirements that a tribe must meet to obtain repatriation. (Draft report at p. 6.)
But this overly simplified summary completely ignores the problems identified by the Legislature that plague this process, namely inadequate consultation necessary to facilitate cultural affiliation leading to the improper designation of items as culturally unidentified. (Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(9) and (12).) This prompted the Legislature to require systemwide policies governing claims, inventory, deaccession, and the identification and reassessment of CUI. (Health & Saf. Code § 8025.)

Further, this summary claims that "[h]uman remains must be proven by the agency to be Native American. Artifacts must have a proven cultural affiliation." (Draft report at p. 6.) This shows a misunderstanding of the process. Agencies are not required to prove that their remains are Native American. Rather, each agency in possession or control of Native American remains and related items must inventory these items through consultation in an effort to determine cultural affiliation. (43 C.F.R. § 10.9(a) and (b).) A proper understanding of the process is necessary to conduct an appropriate audit. The problem identified by the Legislature was not a failure by the UC to prove its remains are Native American, but rather problems associated with properly identifying, inventorying, consulting, and determining cultural affiliation associated with the repatriation process. (Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(8)-(12).)

In a related misunderstanding of NAGPRA, the draft report states that it is the tribes that may request consultation and may submit claims, which if successful, may lead to repatriation. (Draft report at p. 6.) But under NAGPRA, it is the UC which must notify tribes about its collections, including initiating consultations as part of its inventory process in order to determine cultural affiliation. (43 C.F.R. § 10.9.) Tribes may submit requests for repatriation after this process has been completed and cultural affiliation has been assessed. (43 C.F.R. § 10.10.) An agency under this circumstance must expeditiously repatriate items, but it is not deigned to be an adversarial process where tribes have the burden to successfully repatriate items.

Other statements miss concerns related to repatriation. The draft report states that, "Once an agency determines that certain remains are eligible for repatriation, it must try to identify the tribe or tribes affiliated with them." (Draft report at p. 7.) This simplification misses the essential concerns raised by the Legislature related to prior UC efforts related to identifying tribes culturally affiliated with the items. (Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(8)-(12).) The UC must do more than just try to identify tribes affiliated with remains and items, it must properly inventory and consult with tribes in an effort to determine cultural affiliation. (43 C.F.R. §§ 10.5, 10.8, and 10.9.)

The Effect of Publishing the List of Tribes Eligible to Participate in State Repatriation

The draft audit states: “However, until the NAHC completes this list, some California tribes that might otherwise be eligible to submit a claim for repatriation under CalNAGPRA cannot do so.” (Draft report at p. 14.) This statement is legally questionable. The UC is required to comply with federal NAGPRA which only allows repatriation to federally recognized tribes. Any list generated by the Commission containing non-federally recognized tribes would not be entitled to submit repatriation claims under the UC's current repatriation policy regardless of their inclusion on a Commission list.

Further, under the federal disposition process for CUI, federally recognized tribes are given priority of non-federally recognized tribes for items, such that a tribe on the Commission's list with state cultural affiliation may still be unable to participate in repatriation/disposition. (43 C.F.R. § 10.11(c).)

Finally, the federal disposition process for CUI requires the agency to obtain formal National Park Service Approval before repatriating remains to non-federally recognized tribes, unless that tribe has associated with a federally recognized tribe providing it with standing to make a claim. (43 C.F.R. § 10.11(c) Under this circumstance, a tribe on the Commission's list with state cultural affiliation could be denied disposition by the Park Service.

Identifying the Wrong Issues Associated with Repatriation

Disposition Plans and Tribal Disputes

The draft report's focus is misplaced. It describes the disposition process under NAGPRA for CUI, highlighting that as part of this process that tribal disputes may arise contesting disposition plans. (Draft report at p. 7.) But the concerns raised by the Legislature in enacting AB 2836 and in requiring audits had nothing to do with problems with disposition plans and tribal disputes. The problems identified by the Legislature involved prior failures related to inventory, consultation, and cultural affiliation processes. (Assem. Bill No. 2836 (2017-2018 Reg. Sess.) § 1 (Legislative Findings), subd. (a)(8)-(12).) These problems are the ones that have precluded effective repatriation, rather than faulty disposition plans or tribal disputes.

Evidence Required to Support Cultural Affiliation

The draft report states that NAGPRA allows campuses to use various types of evidence to support determinations. (Draft report at p. 8.) But the draft report fails to address that some campuses fail to accord tribal knowledge equal consideration as other forms of evidence, including using gaps in this evidence as a basis for denying cultural affiliation. (43 C.F.R. § 10.14(d) and(e).)

Dispute Resolution

The draft report states that tribes disagreeing with campus decisions "have various options for dispute." (Draft report at p. 8.) But the draft report does not assess whether these avenues are fair and effective. Because the UC has had no policies governing confidentiality for information provided by tribes as part of dispute resolution (something addressed under the Public Records Act—Gov. Code, §§ 6254, subd. (r), 6254.10), some tribes may be reluctant to pursue such disputes. Thus, the draft audit report concludes, without evidentiary citation, that only one repatriation decision has been disputed by a tribe, without assessing tribal concerns about the process that may have stifled tribes bringing such disputes.

The draft audit report suggests that under state law, tribes may also request the Commission mediate disputes. (Draft report at p. 8.) While making this statement, the draft report does not mention that the UC has consistently taken the position that CalNAGPRA does not currently apply until the Commission issues a tribal list under Health and Safety Code section 8012, subdivision (j), thus it has never made the option of Commission mediations available to tribes. The draft report also omits mention that the option for Commission mediation under CalNAGPRA only came into existence in 2015, when the Legislature gave the Commission authority under this statute. Prior to 2015, this avenue was not generally available to tribes.

Assessing Legislative History and Findings

While the proposed report explains federal and state NAGPRA, it omits discussion of AB 2836's Legislative findings, the statute which authorized the audit. These Legislative findings identify the areas the Legislature was most concerned about when it enacted the law, which specifically include identification, inventory, consultation, and cultural affiliation. This omission is significant because these are the areas that the audit should be scrutinizing.

CalNAGPRA's Impacts

The draft report asserts that “CalNAPGRA creates additional opportunities for tribes to obtain remains and artifacts and increases oversight of campuses.” (Draft report at p. 8.) As previously noted, the UC has consistently claimed that CalNAGPRA does not apply until the Commission publishes a list of non-federally tribes eligible to participate in the repatriation process, however, as explained more fully below under subdivision (H), publishing the list has been hampered by CalNAGPRA's citation to a federal entity that no longer exists and to outdated federal law, as well as major changes in federal law which eliminated the vast majority of non-federally recognized tribes that could be placed on such a list, a fact later mentioned by the draft report. As a result, the UC has never complied with CalNAPGRA and this statute has never been made available to tribes by the UC as an avenue for repatriation.

This portion of the draft report does not discuss the related impact of the Legislature's failure to fund the Repatriation Oversight Commission. Specifically, as later mentioned in the report, prior to the Commission assuming its CalNAPGRA responsibilities as required by statute in 2015, CalNAGPRA created the Repatriation Oversight Commission which was required to create the list of non-federally recognized tribes eligible to participate in the process, however, the Legislature never funded this entity. Because of this, no mechanism existed for creating the tribal list and CalNAGPRA has never created the opportunities for tribes to obtain repatriation as suggested by the draft report.

In relationship to the purported opportunities CalNAGPRA provides to California tribes, the draft audit fails to examine the need for CalNAGPRA in the first place. The audit should consider NAGPRA hearings conducted in the 1990's, as well as hearings and testimony related to the enactment of CalNAGPRA in 2001, describing the difficulties and concerns associated with NAGPRA by California tribes necessitating its enactment. In this sense, the draft audit does not adequately address tribal concerns before discussing the potential opportunities provided by CalNAGPRA.

Reasons for Tribes Lacking Federal Recognition

The explanation concerning lack of federal recognition for certain California tribes is incomplete affecting the legal analysis. (Draft report at pp. 9 and 15.) While it is accurate that some tribes in California are not federally recognized because their tribal government's political status was terminated by the federal government through the Termination Act, other tribes in California have non-federally recognized status due to California's and the federal government's genocidal and discriminatory practices, policies and laws, but this is never mentioned. These tribes are often precluded from even petitioning for federal recognition. A more in-depth examination of this history is available in the Executive Summary and Historical Overview Report contained in the Advisory Council on California Indian Policy Final Reports and Recommendations to the Congress of the United States Pursuant to Public Law 102-416, published in September, 1997.

As the draft report notes, CalNAGPRA is intended to provide a mechanism for those California tribes who do not have federal recognition to submit repatriation claims to California state agencies, but this intent has been undermined by language limiting repatriation to non-federally recognized tribes with pending petitions for federal recognition, something tribes subject to genocidal and discriminatory practices are often precluded from even seeking.

Publishing a CalNAGPRA Tribal List

One impediment in publishing a tribal list under CalNAGPRA is the fact that in order to qualify a tribe must have a petition pending on a list maintained by a branch of the Bureau of Indian Affairs that no longer exists and under a federal regulation (25 C.F.R. § 82.1) which also no longer exists. (Health & Saf. Code, § 8012, subd. (j)(2)(A).) Issues related to federal recognition are of tremendous concern and interest in the tribal community such that any potential legal ambiguities in publishing a CalNAGRPA tribal list would be subject to legal challenge. No definitive legal answer exists concerning this issue. This concern in publishing a tribal list is not discussed in the draft report.

A further hurdle to publishing a list is the fact that the petitioner list maintained by predecessor entity to the current Office of Federal Acknowledgement (OFA), the Branch of Acknowledgement and Research, maintained the list based upon tribes with pending petitions, while OFA only maintains a list of tribes with petitions under active review, which does not include all tribes with pending petitions, which may not be under active review by OFA. This is an additional concern to publishing a tribal list under CalNAPGRA not addressed in the draft report.

Further the draft report states that, "According to the NAHC, tribes may have withdrawn their petition or been removed from the list after the regulations were changed, resulting in a decrease in the number of tribes petitioning for federal recognition, and therefore the number of tribes that are eligible for inclusion on the NAHC's list of California tribes." (Draft report at p. 15.) While this may be true, many other reasons may also exist for tribes being taken off the petitioners' list. These are not the only reasons tribes may have been removed from the list and the OFA and the affected tribes would have better information as to these reasons. But other potential reasons for being removed from OFA's petitioners' list should be identified.

Inventory

The proposed audit report discusses that the UC has remains and cultural items without any sort of estimate as to the number of items it currently has, especially compared to 1990, when federal NAGPRA was enacted. This is critical in establishing a meaningful baseline to assess UC compliance with federal and state NAGPRA under AB 2836. (Health & Saf. Code, § 8028.) An assessment of the UC's past repatriation efforts under federal NAGPRA prior to AB 2836's enactment is necessary to assess compliance, as well as, to gage the effect of UC's efforts under this statute.

Ambiguous Statements and Findings

Consultation

The draft report states that as part of consultation, the Commission expected "the university to formally respond to all of the written feedback tribes provided." (Draft report at p. 12.) This is not a Commission expectation. AB 2836 requires the UC to develop its Policy in consultation with California Native American tribes. (Health & Saf. Code, § 8025, subd. (a)(3).) California law defines "consultation" to mean "the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties' cultural values and, where feasible, seeking agreement." (Gov. Code, § 65352.4.) Consultation "shall be conducted in a way that is mutually respectful of each party's sovereignty." (Ibid.)

Failing to respond to tribal comments is not a meaningful process carefully considering tribal views in an effort to reach agreement; however, our concerns about the process utilized by the UC to receive input extend beyond its failure to respond to comments. The entire process of tribal engagement was done at the preference, convenience, and direction of the UC, with little regard for the individual preferences and needs of the tribal governments, communities, and individuals it was legally required to consult with. A process that fails to take into account the nuances, preferences, and individual differences of the diverse parties it seeks to obtain input from is inherently flawed and is unlikely to ensure meaningful engagement from the consulting parties.

Working Group

The draft report states that "the NAHC indicated that it had asked to join the Office of the President in making policy revisions." (Draft report at p. 12.) The Commission believes that this is referring to the fact that the Commission offered to participate on the UC's repatriation policy working group to offer its expertise, but that the UC never accepted this offer, and in fact unequivocally rejected the Commission's offer. If this is the set of facts the report is referring to, the draft report should state this fact, rather than using confusing language to suggest that the Commission somehow sought "to join the Office of the President in making policy revisions."

Existing UC Committees

The draft report suggests that the UC may have created some sort of systemwide committee itself, without obtaining nominees from the Commission before doing so. (Draft report at p. 13.) To be clear, if this occurred, the audit should reference the fact that the UC did not inform the Commission it was doing so and did not seek nominees at that time. As to any existing UC systemwide committees, UCLA's repatriation coordinator, Wendy Teeter, and Carole Goldberg at UCLA, informed the Commission that existing UC systemwide committees often hinder repatriation efforts at UCLA by scrutinizing and delaying proposed repatriations to tribes. They informed the Commission that removal of this barrier by AB 2836 would improve the repatriation process. This fact is not referenced in the draft audit.

RECOMMENDATIONS

The draft report states that: "To ensure that more tribes can make repatriation claims, the NAHC should publish the list of recognized California tribes no later than September 2020." (Draft report at p. 16.) Due to the legal concerns identified above in publishing such a list, as well as the other concerns identified in the draft report, the Commission requests that this recommendation be altered to recommend Legislative amendments to CalNAGPRA as a condition precedent to publishing any tribal lists. Further, the time for making these Legislative amendments, as well as publishing any lists, needs to factor in COVID-19 restrictions potentially limiting or delaying Legislative amendments, which would also impact the timing of any tribal-list publication by the Commission.

Sincerely,

Christina E. Snider
Executive Secretary

Comments

CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM THE NATIVE AMERICAN HERITAGE COMMISSION

To provide clarity and perspective, we are commenting on the NAHC's response to our audit. The numbers below correspond to the numbers we have placed in the margin of the NAHC's response.

The NAHC is incorrect, the audit does evaluate the university’s compliance with repatriation laws. However, as we repeatedly communicated to the NAHC, state law requires our office to adhere to confidentiality requirements that prohibit us from sharing text related to other entities, such as the university, with the NAHC before we publish the audit report. Therefore, as required by law, the redacted draft report we provided to the NAHC included those portions of the report that were relevant to it, but did not include any of our findings related to the university’s noncompliance with NAGPRA and CalNAGPRA.

Throughout its response, the NAHC refers to the remains and artifacts that have not been affiliated with a tribe as “culturally unidentified items,” a technical term in NAGPRA. However, as indicated in the second footnote, we use language in our report to reduce the number of technical terms associated with NAGPRA so that we do not overburden our readers. We have modified this footnote to indicate that we refer to “culturally unidentified items” as remains and artifacts that are not affiliated.

The State Auditor has broad authority to determine what matters to examine within the scope of the audit required by CalNAGPRA. As described in the Appendix, we focused our review on the university’s activities from January 2010 through August 2019 in specific areas, including its compliance with NAGPRA in responding to repatriation and disposition claims. Further, state law does not specifically direct us to determine whether the university conducted adequate consultations when its campuses determined the affiliation of remains and artifacts in their collections, which federal regulations required campuses to do in the 1990s. However, here, here, and here in our report, we do draw conclusions regarding how the campuses conducted consultations with tribes during our review period.

We provided the NAHC with a redacted draft report that contained only those portions relevant to it. Therefore, the page numbers that the NAHC cites in its response do not correspond to the page numbers in our final report.

We conducted this audit according to generally accepted government auditing standards and the California State Auditor’s thorough quality control process. In following audit standards, we are required to obtain sufficient and appropriate audit evidence to support our conclusions. Those standards do not require us to include specific citations to law in our reports. As is our standard practice, we engaged in extensive research and analysis for this audit to ensure that we present a thorough and accurate representation of the facts. Our report text is accurate as stated in describing the roles and responsibilities of the national committee here and here. Moreover, the national committee is a federal entity and is not subject to our audit authority. Finally, contrary to the NAHC’s assertion, nowhere in our report do we indicate that the national committee will be overseeing the university’s compliance with NAGPRA requirements.

Many of the NAHC’s comments relate to text in the Introduction. It appears that the NAHC expected this section of our report to contain audit findings. It does not; we include background information in the report’s Introduction to provide readers with the ideas, terms, and context that will help them understand our Audit Results. All of our audit findings are in the Audit Results.

We disagree with the NAHC’s statement that “these statutes have no relevance to repatriation under federal and state NAGPRA and their discussion is unnecessary and confusing.” Specifically, we include this discussion to inform readers about legal requirements contained in the California Environmental Quality Act that have helped to limit the expansion of campus NAGPRA collections.

During the course of our review, we did not identify any evidence that campuses are still performing archaeological activities and expanding their collections of Native American remains and artifacts. Moreover, the NAHC never shared with us a concern about this issue or any evidence supporting such a concern during our audit. Similarly, in its response, the NAHC provided no support for its assertion that there is a persistent concern about this issue. Therefore, we stand by our conclusion that agencies in California are no longer expanding their collections of Native American remains and artifacts through archaeological activity.

In response to the NAHC’s comment, we have adjusted the heading for this text box to clarify that the listing includes the major requirements for repatriation eligibility. However, our report does not state that a tribe must only meet these three requirements to obtain repatriation.

We edited the text box associated with this text address the NAHC’s concern. Specifically, we removed the reference to agencies proving remains are Native American because federal regulations do not place the burden of proving that remains are Native American exclusively on an agency or tribe.

The NAHC conflates the reporting of inventories that NAGPRA required campuses to perform in the 1990s with the requirements that campuses must follow when they receive repatriation requests for items in their inventories. The NAHC is correct that the inventory and consultation processes it describes in its response were required. However, as we state here, they occurred in the 1990s, which is outside of the scope of this audit.

We disagree with NAHC’s assertion that our statement that until the NAHC completes the list, some California tribes that might otherwise be eligible to submit a claim cannot do so is “legally questionable.” To the contrary, as we note here, CalNAGPRA requires the NAHC to create the list of California tribes, which then allows those tribes to pursue repatriation. Therefore, we stand by our conclusion that without the list, certain tribes in California cannot submit a claim for repatriation under CalNAGPRA.

The NAHC is correct that non-federally recognized tribes have limited opportunity to receive remains and artifacts under NAGPRA through the disposition process. As we state here, CalNAGPRA is intended to allow such tribes to receive remains and artifacts through CalNAGPRA’s repatriation process. However, a major obstacle to implementing CalNAGPRA has been the NAHC’s inaction on creating a list of tribes who qualify to do so.

In the course of our review, we did not identify any instances in which campuses’ failed to accord tribal knowledge equal consideration with other evidence, as the NAHC alleges. However, we did identify discrepancies in the amount of evidence campuses request tribes to provide, as we describe here and here.

As we explain here and here, under CalNAGPRA, federally recognized tribes can pursue repatriation through CalNAGPRA, including engaging in mediation with the NAHC when they have a dispute with a campus. However, as noted here, no tribes have pursued mediation with the NAHC under CalNAGPRA. Similarly, once the NAHC completes the list, some tribes that are not federally recognized will be able to pursue repatriation and mediation through CalNAGPRA.

As the NAHC recognizes in its response, we include a discussion of the Repatriation Oversight Commission and the reassignment of its responsibilities to the NAHC in 2015. However, the NAHC’s contention that no mechanism existed for creating the list of California tribes is wrong because the NAHC immediately became responsible in 2015 for creating the list once the Legislature abolished the Repatriation Oversight Commission. The NAHC’s statement that CalNAGPRA has not created opportunities for tribes to obtain repatriation obscures the NAHC’s inaction on creating the list of California tribes. Thus, we stand by our conclusion that the NAHC could have expanded the number of tribes that could pursue repatriation had it fulfilled its responsibility to create the list of California tribes under CalNAGPRA.

We acknowledge here that changes in federal regulations may limit the NAHC’s ability to recognize more tribes who can pursue repatriation because of certain requirements in CalNAGPRA. Therefore, as shown here, we made a recommendation to the Legislature that it amend state law to address this issue.

The NAHC did not see the figure in the report displaying this information because it was redacted for confidentiality purposes. We present this information in Figure 3. Further, our analysis covers the period from January 2010 through August 2019, covering the period both before and after Assembly Bill 2836 was passed in 2018.

We believe that our report appropriately presents the NAHC’s concerns with the university’s consultation process when developing the policy, although at a different level of detail than the NAHC included in its response. Specifically, we indicate here and here that the NAHC was dissatisfied with the university’s efforts to consult with tribes to obtain their feedback on its draft policy. Moreover, the NAHC explicitly informed us during the audit that it expected the university to respond in writing to the comments it received from tribes and the NAHC.

Although we believe our text related to the NAHC’s request to be involved in making revisions to the university’s draft policy is clear, we made minor revisions here to address the NAHC’s concerns.

We have included a recommendation for the Legislature to consider amending CalNAGPRA to address the current problems that we discuss in our Audit Results. The NAHC did not see this recommendation because it was redacted for confidentiality purposes. However, regardless of whether the Legislature implements this recommendation, the NAHC is still legally responsible for creating and publishing the list of California tribes under CalNAGPRA. The NAHC’s continued delay in fulfilling its responsibilities is preventing California Native American tribes from being able to make repatriation requests. Therefore, we firmly emphasize the importance of the NAHC implementing our recommendation to publish the list of California tribes.