Report 2019-047 All Recommendation Responses

Report 2019-047: Native American Graves Protection and Repatriation Act: The University of California Is Not Adequately Overseeing Its Return of Native American Remains and Artifacts (Release Date: June 2020)

Recommendation for Legislative Action

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.

Description of Legislative Action

AB 275 (Chapter 167, Statutes of 2020) removes the requirement in CalNAGPRA that non-federally recognized California tribes must be on the petitioner list, and expands the definition of "tribe" to include California tribes that are on the contact list maintained by the NAHC. The NAHC is required to develop and notify tribes, museums and agencies of the list by January 1, 2021.

California State Auditor's Assessment of 6-Month Status: Legislation Enacted

Description of Legislative Action

AB 275 (Ramos) would remove the requirement in CalNAGPRA that non-federally recognized California tribes must be on the petitioner list, and expands the definition of "tribe" to include California tribes that are on the NAHC's list of recognized tribes. The bill would require the NAHC to develop and disseminate the list to tribes, museums and agencies by Jan. 1, 2021.

California State Auditor's Assessment of 60-Day Status: Legislation Introduced

Recommendation #2 To: University of California

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.

Annual Follow-Up Agency Response From October 2022

President Michael Drake issued the UC Native American Cultural Affiliation and Repatriation Policy (https://policy.ucop.edu/doc/2500489/NAGPRA) on December 17, 2021, effective January 1, 2022.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

Annual Follow-Up Agency Response From October 2021

UC postponed finalization of the UC Native American Cultural Affiliation and Repatriation Policy to allow tribes more time to submit comments and to incorporate the changes to CalNAGPRA resulting from AB 275. These changes were completed in February 2021. The revised draft UC policy was released for 90-day UC comprehensive review on March 2, 2021. Comments were solicited from UC stakeholders, California Native American communities, and the NAHC through May 2021. Together with the UC Cultural Affiliation & Repatriation Policy Advisory Workgroup we have reviewed the comments received and in response, made final edits to the policy. We are meeting with the NAHC in October 2021, and aim for final issuance by December 2021.

Notwithstanding these delays, UC has made significant progress towards repatriation under the Interim Policy and the revised requirements of CalNAGPRA.

[As previously indicated, the July 24, 2020 interim policy remains in effect, and UC is working with the campus Repatriation Coordinators to implement the provisions of AB 275. In addition, UC met with the NAHC via Zoom on May 18, 2021 to describe the elements that could be available for the Preliminary Summaries and Inventories required by January 2022, and the format in which NAHC will accept these. We are waiting for NAHC to issue the list of elements they will require, and the launch of their system for submission of the preliminary summaries and inventories. We will continue to collaborate with NAHC to exchange information and refine the procedures.]

California State Auditor's Assessment of Annual Follow-Up Status: Pending

1-Year Agency Response

UC postponed finalization of the UC Native American Cultural Affiliation and Repatriation Policy to allow tribes more time to submit comments and to incorporate the changes to CalNAGPRA resulting from AB 275. These changes were completed in February 2021. The revised draft UC policy was released for 90-day UC comprehensive review on March 2, 2021. Comments were solicited from UC stakeholders, California Native American communities, and the NAHC through May 2021. We have scheduled meetings in June 2021 with the UC Cultural Affiliation & Repatriation Policy Advisory Workgroup to review the comments received and make final edits to the policy. We aim for final issuance by July 2021.

As previously indicated, the July 24, 2020 interim policy remains in effect, and UC is working with the campus Repatriation Coordinators to implement the provisions of AB 275. In addition, UC met with the NAHC via Zoom on May 18, 2021 to describe the elements that could be available for the Preliminary Summaries and Inventories required by January 2022, and the format in which NAHC will accept these. We will continue to collaborate with NAHC to exchange information and refine the procedures.

California State Auditor's Assessment of 1-Year Status: Pending

6-Month Agency Response

AB 275, signed by Governor Newsom on September 25, 2020, requires substantive changes and process clarifications. UC met with the Native American Heritage Commission (NAHC) on October 30, 2020 to discuss how NAHC planned to implement this law and how best to incorporate the provisions of AB 275 into the UC policy. UC also arranged for a second meeting on November 9, 2020. While the California Deputy Attorney General (acting as counsel for the NAHC) attended this meeting, neither Commissioner Miranda nor Commissioner Lopez-Keifer, both of whom have been tasked with reviewing the UC policy on behalf of the NAHC, were able to attend. UC has been working on incorporating AB 275 and addressing comments received on the interim policy, however, we need more time to consult with the NAHC and with the tribes prior to finalizing the policy. We expect to engage in these consultations, confer with the UC Cultural Affiliation & Repatriation Policy Advisory Workgroup, and make the final edits to the policy by February 28, 2021. Should these changes require a comprehensive re-review by the UC Academic Senate in accordance with UC's policy on policies, we would release this draft for a 90 review and finalize by July 2021. If UC comprehensive review is not required, we will finalize the policy by March 2021.

In the meantime, the interim policy remains in effect.

California State Auditor's Assessment of 6-Month Status: Pending

60-Day Agency Response

Per the NAHC's and Governor's Office request, the policy was issued as interim in order to allow tribes that have not been able to review due to the COVID-19 pandemic additional time to comment. However, the policy is fully in effect and represents a significantly improved repatriation process. We expect to issue the final policy by December 31, 2020.

California State Auditor's Assessment of 60-Day Status: Pending

Until the University of California issues its final policy, we will continue to report this recommendation as pending.

Recommendation #3 To: University of California

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.

Annual Follow-Up Agency Response From October 2022

The UC Native American Cultural Affiliation and Repatriation Policy (https://policy.ucop.edu/doc/2500489/NAGPRA), effective January 1, 2022 includes the requirement for the submission of biannual reports on all the following elements to the systemwide and campus committees. UC Office of the President continues to work with the systemwide committee to refine the report templates to make them more meaningful and comprehensible.

1) All pending Requests

2) Status of Federal and CalNAGPRA Notices

3) Tribes consulted, including the content and status of the Consultation

4) Repatriations or Dispositions completed, including:

(i) Requesting Tribe(s)

(ii) Whether the Tribe submitted their Request using the NAGPRA or CalNAGPRA

process, or both

(iii) Whether Human Remains or Cultural Items have been physically transferred

5) All loan agreements

6) Materials found as a result of campus reviews

7) Newly accepted Human Remains and Cultural Items

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

Annual Follow-Up Agency Response From October 2021

The UC Office of the President has received biannual reports from all campuses covering calendar year 2020, and another for the period of January 1, 2021 - June 30, 2021.

As the systemwide and campus committees are convened, these reports will be presented to them. (See recommendation 4 below.)

California State Auditor's Assessment of Annual Follow-Up Status: Pending

1-Year Agency Response

The UC Office of the President has received biannual reports from all campuses covering calendar year 2020. The next biannual report is due in July 2021.

However, as UC has not yet received committee nominations from NAHC as required by CalNAGPRA (see response to Recommendation #4 below), these reports will be presented to the systemwide committee upon its formation.

California State Auditor's Assessment of 1-Year Status: Partially Implemented

6-Month Agency Response

The interim policy requires bi-annual reporting as previously stated. The first reports will be submitted in January 2021.

California State Auditor's Assessment of 6-Month Status: Pending

60-Day Agency Response

The policy requires bi-annual reporting, including a listing of all of the following items to the President, Chancellor, and Campus and Systemwide Committees. The first report is due no later than January 2021.

- All pending Requests, date received, and status, including relevant dates;

- Status of Federal and CalNAGPRA Notices;

- Tribes consulted, including the content and statues of the consultation.

- Repatriations or Dispositions completed, including:

- Requesting tribe(s)

- Whether the tribe submitted their Request using the NAGPRA or CalNAGPRA process, or both

- Whether Human Remains or Cultural Items have been physically transferred

- Loan agreements (either for incoming or outgoing Human Remains and Cultural Items);

- Locations reviewed and reports received for previously unreported Human Remains or Cultural Items; a description of the items found and identifications made, where they were located, the status of updated Inventory/Summaries, and whether Consultation has been initiated; and

- Newly accepted Human Remains and Cultural Items (if any).

California State Auditor's Assessment of 60-Day Status: Pending

The University of California is waiting for final implementation of this policy and expects to receive the reports from its campuses in January 2021. Until this occurs, we will continue to report this recommendation as pending.

Recommendation #4 To: University of California

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.

Annual Follow-Up Agency Response From October 2022

After receiving nominations from the Native American Heritage Commission (NAHC), UCOP and campuses appointed committee members (half Tribal and half UC, in accordance with CalNAGPRA). Inaugural systemwide and campus committee meetings occurred between September and November 2021.

We note the degrees/areas of professional focus for some members do not quite match the requirements in CalNAGPRA. However, given their relevant experience and nomination by the NAHC, UC concurred with the NAHC nominations.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

Annual Follow-Up Agency Response From October 2021

NAHC provided the nominees for the UC committees on June 24, 2021, and UC requested background information on the nominees on July 20, 2021.

As of October 1, 2021, all NAHC nominees for voting members have confirmed their willingness to serve. We are collecting campus candidates and requesting NAHC nominations for the nonvoting members of the systemwide committee. UC expects to appoint and convene the systemwide committee by November 2021.

All six campuses with known collections subject to CalNAGPRA have issued appointment letters to the NAHC nominated campus committee members. We note there were five members whose degrees/areas of professional focus did not quite match the requirements in CalNAGPRA. However, given their relevant experience and nomination by the NAHC, UC deemed it appropriate to accept the NAHC nominations.

Three campuses (Berkeley, Los Angeles, and San Diego) have held initial welcome meetings of their newly constituted committees, and are planning additional meetings. Three additional campuses (Davis, Riverside and Santa Barbara) are planning to hold their first committee meeting in October.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

1-Year Agency Response

Due to the unfortunate loss of several elders in late 2020, NAHC canceled its January 15, 2021 meeting and rescheduled it to February 24, 2021. At that meeting, NAHC reported it was unable to provide nominations to UC for the systemwide or campus committees due to insufficient pools of qualified candidates, and extended the nomination period through mid-March 2021. NAHC reported at its April 16, 2021 meeting that it was still not yet ready to provide nominations to UC for the systemwide or campus committees, but that a special meeting would be scheduled to approve the submission of nominees for some priority UC campuses. NAHC will continue to accept nominations for UC committees on an ongoing basis.

At this time, we have not received information confirming when this meeting will occur, or when (and for which campuses) UC will receive nominations following this meeting. However, UC expects to appoint each committee within one month of the meeting at which NAHC approves nominations for that committee.

California State Auditor's Assessment of 1-Year Status: Pending

6-Month Agency Response

As last reported, UC requested nominations for its committees on June 19, 2020. NAHC released its invitation for nominations (http://nahc.ca.gov/calnagpra/nominate/) on November 2, 2020. UC informed all tribes and the UC NAGPRA administrators of the NAHC open nomination period, which closes December 18, 2020. NAHC informed UC that it would review the nominations and submit its list to the full Commission at its January 15, 2021 meeting, after which it will present the list to UC. UC then expects to make selections for all UC committees by February 15, 2021.

California State Auditor's Assessment of 6-Month Status: Pending

60-Day Agency Response

On June 19, 2020, UCOP sent a request to the NAHC for the nominations of individuals who meet CalNAGPRA requirements for both the UC and the tribal membership on campus and systemwide committee. We have not yet received these nominations from the NAHC. In addition, UCOP solicited, and has received, nominations of individuals who meet CalNAGPRA requirements for the UC membership on campus and systemwide committees from the UC administration and Academic Senate. UC will submit the UC recommendations to the NAHC once they open up their process for seeking nominations. Since CalNAGPRA specifies that UC is to appoint members to its committees upon nomination by the NAHC, UC is awaiting the NAHC's response. We understand that one reason for the delay may be that NAHC was waiting for CalNAGPRA's definition of "California Indian Tribe" to be amended (since that definition affects which members of non-federally recognized California tribes are eligible to serve on UC committees, under CalNAGPRA). AB275 would amend the definition, and will become law presuming that Governor Newsom signs the bill by October 2020. If NAHC provides nominations by November 2020, UC will reconstitute its committees by December 2020.

California State Auditor's Assessment of 60-Day Status: Pending

Recommendation #5 To: University of California

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.

6-Month Agency Response

UCOP and UC Berkeley have jointly developed a plan for communicating with tribes about missing remains and artifacts.

California State Auditor's Assessment of 6-Month Status: Fully Implemented

60-Day Agency Response

UCOP has confirmed that only the Berkeley campus is aware of missing human remains from collections captured in published inventories and for which it is possible that tribes have not been notified. UCOP and UCB will jointly develop a culturally sensitive plan for informing tribes of missing human remains.

California State Auditor's Assessment of 60-Day Status: Partially Implemented

Until the Office of the President and Berkeley develop a plan for communicating with tribes about missing remains and artifacts, we will continue to report this recommendation as partially implemented.

Recommendation #6 To: Native American Heritage Commission

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

6-Month Agency Response

The Commission maintains a list of all California Indian tribes and their respective state aboriginal territories for the purpose of the repatriation of Native American tribal human remains and cultural items pursuant to Section 8013(a) of the Health and Safety Code. Agencies or museums seeking to implement their duties under CalNAGPRA may contact the Commission to determine relevant tribes to consult with. This information is published on the NAHC website at http://nahc.ca.gov/calnagpra/ and will be sent to all agencies and museums covered under CalNAGPRA on or before 12/30/2020.

California State Auditor's Assessment of 6-Month Status: Fully Implemented

60-Day Agency Response

NAHC will comply with the statute as amended, but anticipates sending out the list of CalNAGPRA eligible tribes (as redefined under the amended language) to agencies and museums by the end of September 2020 in compliance with the Auditor's recommendation.

California State Auditor's Assessment of 60-Day Status: Pending

All Recommendations in 2019-047

Agency responses received are posted verbatim.