Phil Wilkie on Kumeyaay repatriation

Hopefully, somebody out there can answer: When did DNA become capable of identifying cultural relationships? The last time we checked, genes, language and culture were independent of each other. While individuals can change their language and culture, the last we checked, other than blue jeans, individuals can't change their genes...

This letter was found at: http://weber.ucsd.edu/~rfrank/class_web/UnivHouse/

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To: UC NAGPRA Committee

From: Philip J. Wilke, Professor, UCR

Comments on UCLA Report on Kumeyaay Cultural Affiliation by Diana Wilson

I believe that no strong case can be made for affiliation of these ancient human remains (to 7,500 years old; 375 generations) from SDI-525 and -603 with the present Kumeyaay. There is instead strong evidence to suggest that the Kumeyaay occupied the coastal zone of southern California comparatively recently.

The fact that the Historic Kumeyaay and all other ethnic groups in the area of southern California and the Colorado Delta cremated their dead suggests a very ancient practice that is not reflected in the remains in question.

As D.L. True showed in his dissertation, there are long-known differences in Late Prehistoric (ca. 500 years) weapon point design in the region in question. Points frequently are notched or boldly serrated in the Kumeyaay area, perhaps reflecting some still-unknown connection with the area of the Hohokam of the Gila River. Points generally are unnotched in the neighboring Takic area to the north, and all sources agree that groups speaking Takic languages have been in place for a very long time.

The core area for Yuman languages is located far to the east, around the head of the Gulf of California and up the tributary drainages of the Colorado and Gila rivers. Available evidence can be interpreted that the drying of Lake Cahuilla from the Salton Basin about A.D. 1450 caused considerable population displacement and that not all of it could be accommodated by the recorded dense settlement in Historic times on the lower Colorado and Gila rivers. Don Juan de Oñate reported in 1605 that some 16,000 Indians lived on the lower Colorado alone, a tremendous figure, and one wonders from where they all came. Certainly their bitter warfare pattern wherein neighbors were enemies and nonneighbors were allies suggests overcrowding and turmoil in times of food shortage due to agricultural crop failure, which was itself due to vagaries of the annual flood. Prior to A.D. 1450 Lake Cahuilla was within the distributary system of the Colorado, and was therefore a freshwater lake with abundant fish, shellfish, bird, and, locally, marsh vegetation resources flanking the Peninsular Ranges of southern California. The lake was over 100 miles long and 34 miles wide, and its abundant shoreline archaeological sites attest to a very substantial Indian population. That the drying of Lake Cahuilla could have caused an influx and crowding of population onto the lower Colorado and Gila and a coincident westward migration of Kumeyaay groups toward the California coast seems almost certain. When considered alongside the generally coincident abandonment of the large Hohokam towns of central and southern Arizona, the entire area of the Colorado, Gila, Salt, and Salton basins has to have experienced profound human population displacements. The Kumeyaay seem certain not to have escaped participation in this drama.

One has to ask whether conventional archaeological approaches could ever effectively identify ancestor groups or shared identities across even comparatively short time spans. And the time under consideration here is very, very, long indeed, 375 generations. This almost certainly is longer ago than the spread of Indoeuropean. What can archaeology tell us about relationships and shared identities across such immense time spans? If one is to proceed with repatriation in the manner considered here, it would seem prudent to be quite certain about claiming shared identity. Given basically the study of skeletal remains, could a clear differentiation, or a shared identity, be made between the remains of Serbs and Croat muslims, Turks and Armenians, German Jews and Nazis, Hutus and Tutsis, or most other groups that within our own time have overwhelmed one another with genocidal hatred? The historic Colorado River Yuman tribes were all very close linguistic kin, yet the Mohave and Quechan, neighbors of the Halchidhoma to the north and south, annihilated the latter tribe in a single day killing 255. Yet they shared the same group identity as linguistic kin living as neighbors along the same river following identical cultural practices and intermarrying. Could the remains of these tribes be separated by physical anthropology? I think not. Yet it seems clear that the groups in question chose genocide rather than group identity that fateful day in 1826. Add 365 generations to the equation and then how do you sort out issues like this one?

DNA studies are, or soon will be, capable of identifying cultural relationships with remarkable probability. The present case clearly suggests a need for a DNA database of contemporary Native American group identities against which the DNA of ancient human remains can be compared. It would seem that this would be the strongest tool Native Americans could have to support claims of shared identity across long time spans, and that they would demand its establishment. Until that is available, there is no firm basis upon which to assign a modern identity to these ancient human remains. Yet, some of the recorded cases of genocide mentioned above suggest that even with DNA evidence, shared group identity will remain an elusive, and illusive, phenomenon.

Meeting Minutes from May 2002

It looks like at least one person has utilized the California Public Information Act. Posted on the web at http://weber.ucsd.edu/~rfrank/class_web/UnivHouse/ are the minutes from the May 2002 meeting. for the original, check for the file called "Summary of 5-15-02 Advisory Group Meeting.doc" .

To help spread the news, we are posting them here too. Interesting information on repatriation matters for the Kumeyaay, Wiyot, and how the UCOP committee views/viewed California AB 978.

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MEETING SUMMARY

University of California Systemwide Advisory Group on
Cultural Affiliation and Repatriation of Human Remains and Cultural Items

May 15, 2002 – Oakland, CA
12:00 – 5:00 pm

Attendees:
Advisory Group members: Robert Bettinger, Chair/Professor of Anthropology (UC Davis); Diane Gifford-Gonzalez, Professor, Anthropology (UC Santa Cruz); Leon Letwin, Professor of Law, Emeritus (UC Los Angeles); Martha Macri, Professor of Native American Studies and Anthropology, UC Davis (At-large member); Phillip Walker, Professor, Anthropology (UC Santa Barbara); Philip Wilke, Professor, Anthropology (UC Riverside); Ernestine Ygnacio-DeSoto (At-large member)
Other campus attendees: Richard Hitchcock, NAGPRA Coordinator (UC Berkeley); Diana Drake Wilson, Assistant Research Ethnographer (UCLA)
UCOP staff: Allison Rosenberg, Director, Research Policy and Development; Ellen Auriti, Assistant Director, Academic Legislative Issues; Rebecca Landes, Principal Analyst, Office of Research; Maria Shanle, University Counsel
Absent Advisory Group member: Kent Lightfoot, Professor, Anthropology (UC Berkeley)

I. Welcome of new committee members; introductions
Attachment 1: Revised Roster of Advisory Group members
Handout: Overview: UC Systemwide Advisory Group

Three new Advisory Group members were welcomed to the group – Martha Macri, Ernestine Ygnacio-DeSoto and Philip Wilke. Martha and Ernestine are “at large” members (not charged with representing any particular campus) appointed in February pursuant to the revised UC policy calling for the addition of two Native American individuals to serve on the Advisory Group. Phil was appointed to the group almost a year ago to represent the Riverside campus.

Martha was introduced as a Cherokee descendent and Professor of Native American Studies and Anthropology at UC Davis, specializing in Native American languages and linguistic relationships. She has twice served as the Chair of the Native American Studies department of UC Davis, and has also served as the Director of the Native American Language Center.

Ernestine was introduced as a Chumash descendent (and daughter of the last native speaker of the Barbareño Chumash language) who has worked extensively with researchers to preserve ethnographic and archaeological information about her tribe. She has worked with the California Native American Heritage Commission, museums, and academic institutions on repatriation issues, and has served on the UCSB Chancellor=s Advisory Committee on Repatriation of Human Remains and Cultural Items.

Phil was introduced as a Professor of Anthropology at UC Riverside, with expertise in prehistoric technology. He has a major research and teaching focus in lithic technology and has developed specialized courses emphasizing practical stone working leading to work in flake and blade technologies, quarrying, production of millstones, and debitage analysis. His research has included blade technology in various parts of North America, the Near East, and Asia, as well as archaeology of the Great Basin.

General introductions were made, and attention was called to the revised copy of the Advisory Group roster included in the meeting packets. In addition, a handout was distributed providing an overview of the membership and responsibilities of the Advisory Group. Allison Rosenberg highlighted the importance of the group’s role in advising the UC Office the President on matters relating to repatriation policy and campus compliance with applicable repatriation laws. She also stated that in order to encourage open and candid discussion, as a general rule, the group=s deliberations should be considered to be internal to the Advisory Group; as a matter of professional courtesy, individual comments generally should not be circulated without permission.

II. Review/recommendation re: whether to approve UCLA=s revised NAGPRA inventory identifying remains and associated funerary objects (AFOs) from CA-SDI-525 and CA-SDI-603 as being Aculturally affiliated@ with the Kumeyaay
Attachment 2: Draft revised UCLA Kumeyaay inventory;
Attachment 3: October, 2001 UCLA report on Kumeyaay Cultural Affiliation;
Attachment 4: Compendium of written comments from Advisory Group members;
Attachment 5: UCLA response to comments
Handout: Cultural Affiliation [Excerpt of NAGPRA definition]
Handout: 5/14/02 Memo from Diane Gifford-Gonzalez
Handout: 4/2/02 letter from Douglas Owsley to Phillip Walker

The Advisory Group advised UCOP on UCLA’s revised NAGPRA inventory identifying remains (and associated funerary objects) from CA-SDI-525 and CA-SDI-603 as being culturally affiliated with the Kumeyaay Cultural Repatriation Committee. The extreme age of the remains in question (5,500 – 7,500 years old) was a significant factor that was discussed, since many members felt the age of the remains had a bearing on whether it is possible to identify cultural affiliation by a “preponderance of the evidence,” as required by federal NAGPRA law.

Ellen Auriti distributed a handout containing excerpts from the federal NAGPRA regulations setting out the definition of cultural affiliation and setting out the standard of proof required for establishing cultural affiliation. She reminded the group that the question to be answered in reviewing the UCLA inventory was: “Does the preponderance of the evidence lead to the conclusion that the remains and associated funerary objects listed on UCLA’s inventory are culturally affiliated with the Kumeyaay? That is, has the standard set out in the federal NAGPRA law been met?”

Diana Drake Wilson began the discussion by noting that UCLA concluded that the remains and AFO’s in question are culturally affiliated with the Kumeyaay. She noted that her October 2001 Report on Kumeyaay Cultural Affiliation contains more detailed explanations regarding the evidence that led UCLA to that conclusion. She also noted that after receiving preliminary comments from several Advisory Group members, she went back and reviewed the linguistic and oral tradition evidence in greater depth, and found that it reinforced her conclusion that there is cultural continuity between the Kumeyaay and the remains in question. According to Diana, UCLA’s determination of cultural affiliation was based on published sources and on discussion with Kumeyaay consultants and with scholars. Although the consensus among scholars was that neither continuity nor discontinuity could be conclusively established between earlier archaic groups and present-day Kumeyaay, UCLA concluded that the preponderance of the evidence (considering geographical, archaeological, biological, linguistic, ethnographic, and oral tradition) leads to a conclusion that supports the Kumeyaay claim of shared group identity with the remains in question.

There was considerable group discussion about whether the preponderance of the evidence leads to a conclusion of cultural affiliation.

One member noted that under NAGPRA, “cultural continuity” is not the standard for establishing cultural affiliation; rather, the law requires a showing of “shared group identity.” For example, many people in the U.S. could be said to have cultural continuity with 16th Century Englishmen (or with ancient Greeks, from whom we derive many of our core cultural ideas about democracy), but we don’t have a “shared group identity” that would lead to a conclusion of cultural affiliation. Thus, it was pointed out, even though some of the research cited in UCLA’s report may lead to a conclusion that there are aspects of cultural continuity between the La Jollan people and the Kumeyaay, that is not enough to lead to a conclusion of “cultural affiliation.” Another member expanded upon this, noting that just because an area is continuously occupied does not mean that the people who are there now are necessarily culturally affiliated with the people who were there earlier.

Another member pointed out that NAGPRA appears to work better when relatively shallow time depths are involved, but that it is much harder to meet the legal requirements of establishing “cultural affiliation” when very long time periods are involved.

Another member pointed out that in considering whether there is a “preponderance of the evidence,” group members should recognize that the NAGPRA standard does not require that the evidence be overwhelming. Rather, the NAGPRA standard requires that the evidence lead to the conclusion that it is more likely than not that remains are culturally affiliated with the particular group in question. If the evidence is equally balanced, then the decision should be against cultural affiliation and repatriation. University Counsel Maria Shanle confirmed this interpretation.

Additional points raised by Advisory Group members included:

- Physical/archaeological evidence: It was pointed out that evidence of significant difference in cranial morphology between the earlier La Jollan people and the Kumeyaay, and evidence that there was a marked (rather than a gradual) shift indicates a major discontinuity. [Diana responded that because there is a gap of 2,000 years in the record, there does indeed seem to be a marked shift, but it is possible that the shift was more gradual and we simply don’t have the evidence to show that.].

- Burial practices: It was pointed out that evidence of discontinuity in burial practices (cremation versus burial) suggests a lack of shared group identity. Several members noted that burial practices are an especially important indicator of cultural identity.

- Oral history: It was pointed out that it is difficult to interpret the significance of oral histories, particularly descriptions of events that are impossible to date or identify as unique. For example, it was pointed out that many groups have oral traditions that refer to origins from the sea, but since there are many seas, it is difficult to conclude that different stories referring to the sea are necessarily linked. It was also pointed out that in some cases, oral histories are more fixed or verifiable (e.g., cases where a particular oral history is memorized and can be recited verbatim by group members with little or no variation), which may make it easier to find links between two groups, but that that is not the case here. While several members noted that they found the oral tradition evidence to be important, they did not find it convincing enough to outweigh other evidence suggesting a lack of cultural affiliation.

- Linguistic evidence: It was pointed out that the linguistic evidence suggests that there was considerable population movement, which does not support the theory that people remained in the same place. This does not support a finding of cultural affiliation.

- Lack of evidence of earlier group’s cultural identity: It was suggested that there is not enough evidence regarding the earlier group’s cultural identity to establish a connection between that group and the Kumeyaay. That is, we do not know what the earlier group looked like, what its cultural practices were. Evidence of distinctive cultural practices is needed (not just mill stones, for example, which were used by many cultures) in order to establish shared group identity.

- One member noted that while the claim from the Kumeyaay certainly appears to be heartfelt, and while there is a lot of good research that went into the UCLA report, the preponderance of the evidence standard, in their view, had not been met. Several other members voiced support for this view.

- One member recommended approving UCLA’s finding of cultural affiliation with the Kumeyaay, even though the evidence is not strong, given that it is extremely difficult to establish shared group identity at such a large time depth, and given that the Kumeyaay may have as strong a claim as any group is likely to be able to establish.

Conclusion: The majority of the Advisory Group advised that the NAGPRA standard for cultural affiliation was not met in this case (i.e., that the preponderance of the evidence does NOT lead to the conclusion that the remains and associated funerary objects listed on UCLA’s inventory are culturally affiliated with the Kumeyaay).

Follow-up: After the meeting, Ellen Auriti brought the Advisory Group’s advice back to OP. The OP decision was that based on the group’s advice, UCLA should modify its draft revised inventories to indicate that SDI-525 and CA-SDI-603 are culturally unidentifiable. Once the inventories are so modified, UCLA should submit them to federal and tribal officials in accordance with NAGPRA.

III. Review/recommendation re: whether to approve UCLA’s revised NAGPRA inventories identifying remains from CA-HUM-? as being Aculturally affiliated@ with the Wiyot
Attachment 6: Draft revised UCLA Wiyot inventory

Diana Wilson provided background information about this inventory, noting that UCLA’s experts acknowledged that making the determination of cultural affiliation in this case was difficult. She noted that the determination of cultural affiliation was based on an assumption that the mandible in question is Native American and that it is recent.

Several Advisory Group members raised questions about whether such assumptions were supportable. In particular, concerns were raised about the age of the remains. It was pointed out that without evidence that the remains are recent, a finding of cultural affiliation is not warranted.

Conclusion: The Advisory Group’s advice was that the NAGPRA standard for cultural affiliation was not met in this case (i.e., that the preponderance of the evidence does NOT lead to the conclusion that the remains listed on UCLA’s inventory are culturally affiliated with the Wiyot).

Follow-up: After the meeting, Ellen Auriti brought the Advisory Group’s advice back to OP. The OP decision was that based on the group’s advice, UCLA should modify its draft revised inventory to indicate that CA-HUM-? is culturally unidentifiable. Once the inventory is so modified, UCLA should submit it to federal and tribal officials in accordance with NAGPRA.

IV. Review/recommendation re: whether to approve UCLA’s revised NAGPRA
inventories identifying remains from CA-RIV-126, CA-RIV-364, and CA-RIV-366 as being Aculturally affiliated@ with the Luiseño (Pechanga).
Attachment 7: Draft revised UCLA Luiseño, Pechanga inventory

Diana Wilson provided background information about this inventory, noting that the Pechanga representatives with whom UCLA consulted felt very strongly that the items in question (which were heavily burnt) were part of a memorial rite. After some discussion among Advisory Group members, it was suggested that each site number in this inventory be considered separately, since there were differing circumstances for each. With respect to CA-RIV-126 (Accession number 232) and CA-RIV-364 (Accession number 473): Though there was some discussion about whether there was sufficient evidence that the pot sherds and quartz crystals were ceremonial, several members noted that the oral evidence was strong (and relatively recent). In both cases, the group recommended approving UCLA’s determination of cultural affiliation with the Luiseño. Several members suggested that UCLA should go back to determine whether there are additional Luiseño groups that should be included in the cultural affiliation (i.e., that the best practice would be to list all the possible Luiseño groups that could be culturally affiliated).

With respect to CA-RIV-366 (Accession number 473), the group’s discussion focused on the concern that there was not enough evidence to conclude that the items from this site are funerary objects. In fact, it was pointed out that there was some question as to whether human remains were associated with this site at all (the missing bone referenced on the inventory may have been deer bone). Therefore, the Advisory Group endorsed the suggestion made by one member that the items referenced in the inventory from CA-RIV-366 be treated as non-NAGPRA items (which could be given to a requesting tribe via a non-NAGPRA deaccession). A question arose as to whether systemwide (Office of the President) approval is needed for museum deaccessions of items not covered by NAGPRA. Both Ellen Auriti and University Counsel Maria Shanle responded that they knew of no such requirement, but stated that they would research this point and advise the group of their conclusion.

Conclusion:
A. CA-RIV-126; CA-RIV-364: The Advisory Group’s advice was that the NAGPRA standard for cultural affiliation was met in the case of Accession number 232 (CA-RIV-126) and for part of Accession number 473 (CA-RIV-364) (i.e., the group found that the preponderance of the evidence supports UCLA’s conclusion that the remains and cultural objects listed on UCLA’s inventory are culturally affiliated with the Luiseño). Though approving the affiliation with Luiseño, several members advised that UCLA should consider listing additional Luiseño groups as part of the cultural affiliation.
B. CA-RIV-366: The Advisory Group’s advice was that the items referenced in the UCLA inventory from CA-RIV-366 be treated as non-NAGPRA items (i.e., not be listed on the inventory), which the campus could choose to give to a requesting tribe via a non-NAGPRA deaccession.

Follow-up: After the meeting, Ellen Auriti brought the Advisory Group’s advice back to OP. The OP decision was a) to approve UCLA’s revised inventory identifying CA-RIV-126 and CA-RIV-364 as culturally affiliated with the Luiseño; and b) to ask UCLA to modify its draft revised inventories to remove the reference to items from CA-RIV-366 (which should be treated as non-NAGPRA items). UCLA should submit its revised inventory to federal and tribal officials in accordance with NAGPRA.
With respect to the question that arose regarding deaccessions: After having researched systemwide policies, Maria and Ellen concluded that there is no generally applicable requirement that campuses obtain OP approval for non-NAGPRA deaccessions from campus museums. OP approval is needed for repatriation and deaccession of Native American remains and cultural items made pursuant to the “University of California Policy and Procedures on Curation and Repatriation of Human Remains and Cultural Items.” There may be policies that apply to other specific cases, but there is no generally applicable requirement that campuses obtain OP approval for every deaccession.

V. Review of UCB request to deaccession ten Native American beads
Attachment 8: UCB Letter requesting deaccession approval

The group discussed an issue raised by a recent request from UC Berkeley for approval to deaccession ten Native American beads from the Hearst museum's collection for destructive analysis in a research study being conducted with the consent of appropriate Native American Most Likely Descendants. It was noted that the beads were not found by UCB to fit into a category of objects covered by NAGPRA, and were not listed on UCB's NAGPRA inventory.

Ellen Auriti asked for the group’s input on 1) whether deaccession was appropriate in the case cited in the UCB letter; and 2) whether this type of deaccession falls into a category that does not warrant systemwide consistency/review. After some discussion, the group responded affirmatively to the second question. It was pointed out that since the beads were not found by the campus to fit into a NAGPRA category, and since they were not listed on a NAGPRA inventory or the subject of a NAGPRA request, there was nothing to indicate that anything other than the museum’s normal procedures should apply (i.e., there is no need for systemwide consistency or review).

With respect to the question of whether deaccession was appropriate in this case: Although no member expressed concerns about UCB’s use of the beads for the proposed research project, several members pointed out that a formal deaccession probably was not necessary, since the beads in question were just a few out of a larger collection. That is, since the collection remains with the museum, a “deaccession” was not necessary. It was pointed out that this was simply a matter of internal campus museum procedures; Richard Hitchcock agreed, and said that he would bring that advice back to his campus to guide future similar situations.

Conclusion: The Advisory Group recommended that in cases where a campus determines that a Native American item does not fit into a category covered by NAGPRA (i.e., it is not human remains, a funerary object, an object of cultural patrimony, or a sacred object) and where there has been no repatriation request under federal or state law, there is no need for systemwide Advisory Group review prior to deaccession. Ellen Auriti confirmed that OP will not require systemwide review in such cases (but noted that campuses should advise OP of cases in which there is likely to be a dispute regarding whether an item is covered by NAGPRA). The group also advised that in this particular UCB case, formal deaccession probably was not necessary in order for the research in question to occur.

Follow-up: None needed.

VI. Discussion re: Advisory Group/OP Review and approval process re: claims, repatriations, deaccessions
Attachment 9: Draft claim form

Review of draft form: Ellen Auriti noted the need to streamline the process for reviewing and approving campus decisions regarding cultural affiliations and repatriations of items covered by NAGPRA. She solicited input regarding a draft form designed to collect the information that Advisory Group members need in order to provide meaningful advice and recommendations. Advisory Group members offered some suggestions for improving the form, but agreed that it contained the basic categories of information needed to review a claim. It was suggested that a separate simplified “notice of claim” form may be useful in addition to the “request for Advisory Group review” form.

Trigger for Advisory Group review: There was some discussion regarding the point at which a claim is ready for systemwide review. It was pointed out that in many cases, a campus may have numerous interactions with a tribe with respect to a claim before the claim is ripe for review (i.e., even though a campus may not respond affirmatively to an initial repatriation request, that decision may not be final, since more information may be requested, additional consultations conducted, etc.). It was noted that it would be unduly cumbersome to solicit Advisory Group input at every state of the transaction.

It was suggested that Advisory Group review should be sought at the point when the campus determines that NAGPRA repatriation requirements have been met and recommends repatriation. At that point, the campus should fill out the form requesting Advisory Group review and send it to OP

Exception to need for Advisory Group review: With respect to streamlining the review process, it was suggested that there is one category of repatriation which generally does not warrant Advisory Group review: Group members agreed that there is generally no need for the Advisory Group to review a campus recommendation to repatriate if:
1) the repatriation involves only human remains and funerary objects that were listed on the campus inventory;
2) the campus inventory identified the remains and associated funerary objects as being culturally affiliated with the tribe requesting repatriation; and
3) the campus inventory was already reviewed/approved by the Advisory Group.

The reason additional Advisory Group review is not needed in such cases is that the Advisory Group already approved the cultural affiliation in question. Once human remains and associated funerary objects have been identified as culturally affiliated with a particular tribe, repatriation is legally required upon request unless a NAGPRA exception applies. NAGPRA exceptions include cases in which there is a competing claim or in which the remains are indispensable to the completion of a specific scientific study of major national importance.

Notifying campuses of repatriations: It was also suggested that OP keep track of repatriations made by UC campuses, and circulate a list of repatriations to the Advisory Group annually, to keep members informed of systemwide repatriation activity. Ellen Auriti agreed that OP would do this.

Conclusion: When a campus determines that NAGPRA repatriation requirements have been met and recommends repatriation, the campus should complete the form requesting Advisory Group review and send it to OP, for distribution to the Advisory Group. However, Advisory Group review will generally not be required in cases where the campus repatriation recommendation pertains to remains and AFO’s that were listed as culturally affiliated with the requesting tribe on a campus inventory that was previously approved by the Advisory Group.

Campuses recommending repatriation of remains and associated funerary objects that meet the above criteria (i.e., that were already identified as culturally affiliated with the requesting tribe on an inventory approved by the Advisory Group) should advise OP whether any NAGPRA exceptions (e.g., competing claims) apply or whether there are other specific issues of potential controversy. If not, there will be no need for additional Advisory Group review.

Follow-up: Rebecca Landes will revise the repatriation claim form in accordance with the discussion and circulate the revised form(s) to the Advisory Group. In the mean time, campuses should use the draft form to notify OP of written repatriation claims they receive from tribes and of any campus repatriation recommendations.

VII. AB 978 follow-up
Attachment 10: Assembly Bill 978
Handout: AB 978: Summary of Main Requirements

Ellen Auriti distributed a document outlining the main requirements of Assembly Bill 978, the bill that enacted the California Native American Graves Protection and Repatriation Act, effective January 1, 2002. She reminded the group that all campuses with collections must be ready to submit a copy of their federal NAGPRA inventories and summaries to the yet-to-be-formed state Repatriation Oversight Commission within 30 days after the date on which the Commission is formed.

She also noted that the campuses must be ready to prepare supplements for those portions of their Federal NAGPRA inventories and summaries relating to remains and cultural items that originated from California but that were not found to be affiliated with any federally recognized tribes. She noted that with respect to those portions of their collections, campuses will have to consult with non-federally- recognized tribes and identify any Astate cultural affiliation@ that can be found with those tribes. She noted that the inventory and summary supplements will not be due until 1 year after the state Commission releases a list of California tribes, but that some campuses may want to get started on any necessary preliminary steps.

She also noted that inventory and summary supplements prepared under the state law should be treated the same way as federal NAGPRA inventories under UC policy – that is, upon completion, they should be submitted to the Advisory Group and OP for review and approval. Any “state cultural affiliations” should be reviewed by the Advisory Group. Ellen requested that campuses notify OP if they receive any claims under the state law.

Ellen also asked the Advisory Group for assistance in identifying potential UC nominees to the State Repatriation Oversight Commission and encouraged Advisory Group members to consider whether they would be willing to serve on the Commission. She noted that since the law gives the Commission a key role in making decisions that will affect museums and agencies with collections of remains and cultural items, service on the Commission will be an important way of serving the University and the state. She noted that UC’s nominee should be an individual who is familiar with UC’s collections, is able to articulately represent the concerns of UC on repatriation issues (particularly with respect to potential impact on research, teaching and public service), is familiar with federal NAGPRA compliance, and is willing and able to work effectively as part of a group in which scientific interests may be the minority view and in which considerable political and cultural sensitivity is required.

There was some group discussion about potential interaction between the state law and Federal NAGPRA, and about how the new state repatriation process would work.

Follow-up: No immediate follow-up is required, but campuses should be prepared to take steps to prepare the inventory and summary supplements required by AB 978. Advisory Group members should contact Ellen Auriti with suggestions for potential UC nominees to the state Commission.

VIII. New state legislative proposals restricting excavation on Native American historic, cultural or sacred sites
Attachment 11: Senate Bill 1816
Attachment 12: Analysis of Senate Bill 1816
Attachment 13: Senate Bill 1828
Attachment 14: Analysis of Senate Bill 1828

Ellen Auriti informed the Advisory Group members about two pending state bills – Senate Bill 1816 and Senate Bill 1828 -- that may have an adverse impact on archaeological research. She noted that though both bills appear to be designed to promote a goal we support – preventing defacement and vandalism of Native American sacred and cultural sites -- they are written so broadly that they could prevent legitimate archaeological research.

Ellen gave a brief overview of the bills. AB 1816 makes it a crime to excavate upon any Native American historic, cultural or sacred site on private or public land, with an exception for activities carried out under the California Environmental Quality Act (CEQA) and for “agreements” entered into pursuant to provisions of existing law relating to the Native American Heritage Commission. AB 1828 amends CEQA to, among other things, prohibit an agency from issuing a permit for any project if a tribe declares that the project would have an adverse impact on a site that the tribe declares to be sacred.

The group had a brief discussion about the potential impact of the bills on research. Ellen noted that UC’s State Governmental Relations Office is working with the authors’ offices in the hope of getting a research exemption inserted into the bills.

Follow-up: Ellen Auriti will continue to work with the UC’s Office of State Governmental Relations office and with other impacted Divisions to attempt to resolve concerns about adverse effects of the bills.

IX. Other business

The group had a brief discussion about forthcoming draft regulations that the Department of Interior plans to release regarding disposition on culturally unidentifiable remains. This issue was expected to come up at the May 31 – June 2 NAGPRA Review Committee meeting in Tulsa, OK. Dick Hitchcock noted that he planned to attend the Tulsa meeting.

It was noted that there is some question regarding whether the Department of Interior has authority under NAGPRA to issue regulations that would be binding on museums regarding disposition of culturally unidentifiable remains.

The group also picked tentative dates for future Advisory Group meetings. Members were asked to set aside the following dates for meetings from 10 AM – 3 PM, with the understanding that one or more meetings might be cancelled if there is no business that needs to be addressed:

SEPTEMBER 23 (Monday)
JANUARY 22, 2003 (Wednesday)
MAY 19, 2003 (Monday)

Follow-up: Members should mark their calendars with the above meeting dates, and should advise Ellen Auriti of any agenda items.

Professor Tim White on the Luby Report

Click on the two pages above to see Professor Tim White's view of the "Luby Report." The odd part was, it wasn't made public until after July 7, 2007--so how can he complain about his whistle-blower rights being violated? Is he paranoid about something? And one also has to ask, if the testimony in front of the State legislature in February 2008 wasn't covered by whistle-blower legislation?

Our thanks to Sandra Harris for turning this over to the state of California.

Prof. Carol Goldberg on the UCOP Repatriation Committee

Professor Carole Goldberg, a professor of Federal Indian Law and a UCOP Repatriation Committee member, wrote the following in 2006--


December 11, 2006


Dear Colleague:


I am writing to you in my capacity as UCLA Campus Repatriation Officer and member of the UC NAGPRA Advisory Group, seeking to enlist your support in an effort to redirect UC policy regarding repatriation to Native American tribes. I have contacted you because I believe the policy as it is currently designed and implemented fails to recognize the interests of faculty throughout the system who engage in work with contemporary tribal communities, whether those faculty are in Native American Studies or other departments. UC policy and practices, as I will explain below, tend to result in the denial of tribal repatriation claims under circumstances where tribes are likely to conclude they have rights under NAGPRA and state law, thereby promoting a negative view of the University within tribal communities.


As you may know, UC policy centralizes decisions regarding repatriation in the Office of the President, and establishes the UC NAGPRA Advisory Group to make recommendations to the President regarding campus-based inventories that find cultural affiliation or otherwise propose repatriation. Under NAGPRA, repatriation is required upon a finding of cultural affiliation of human remains and specified objects, but "culturally unidentifiable" remains and objects may also be repatriated through a process established under federal regulations. Although those regulations have yet to be promulgated, several universities and other institutions, including Cal State Fresno, have repatriated human remains through an informal process set up by the National Park Service.


Under UC policy, only campuses with collections subject to NAGPRA are eligible to send representatives to the UC NAGPRA Advisory Group. These representatives are asked to consult with campus stakeholders with respect to matters of policy and implementation. In addition, there are to be two Native American representatives on this committee, selected by the Office of the President.


In practice this system has not been functioning well. First, there are campuses without collections, whose faculty may have significant research interests and knowledge relevant to the repatriation process, especially researchers in Native American Studies. Second, it has been my experience that although UCLA maintains a broadly representative campus-based NAGPRA committee, none of the other campus representatives consults with other concerned faculty and staff regarding systemwide matters. In practice, all the other campuses, except for UCLA, have sent archaeologists with particular orientations toward repatriation, especially an exclusive emphasis on certain kinds of evidence in determinations of cultural affiliation. The result has been that these archaeologists' perspectives heavily dominate consideration of campus-based recommendations regarding cultural affiliation. Third, Native American representation on the NAGPRA Advisory Group has not been robustly pursued by UCOP. Six months ago, one of the two seats was vacated. Since that time, UCLA has nominated two individuals, and I am under the impression that other campuses have nominated individuals as well. Yet the Office of the President has not appointed a replacement.


The adverse consequences of this arrangement have manifested themselves in several different cases, especially those involving older remains. Sometimes the problem has been failure to credit oral history evidence provided by tribal communities. In another instance, group members refused to recommend repatriation of "culturally unidentifiable" remains through the available informal process on policy grounds, without ever consulting their campuses regarding the desirability of such policy. In still another situation, the Office of the President has simply failed to schedule meetings to discuss a UCLA cultural affiliation recommendation, leaving the requesting tribe in a position of considerable distress.


I am concerned that this course of action by UCOP is harming the University's reputation with tribal communities in California and across the nation, and that those of us who rely on the trust and cooperation of such communities to conduct our research will feel the consequences. I ask you to let me know whether you share this concern, and would be willing to collaborate in raising it with Lawrence Coleman, Vice Provost for Research in the Office of the President. If you prefer to speak by phone, you can reach me at (310) 825-4429.

Sincerely,

Carole Goldberg

Professor of Law

Director, Joint Degree Program in Law and American Indian Studies


The original of this letter can be found at

http://weber.ucsd.edu/~rfrank/class_web/UnivHouse/

(look for Repatriation letter.doc)

In the current tribal newsletter, Jud King has bragged about all the claims the Berkeley Repatriation committee has recently handled. But some questions arise:
How many claims has the Berkeley Repatriation Committee dealt with? What is the outcome of those claims?

Well, if you are curious like we are, we suggest you send the following letter to Mr. King:

Interim Director Jud King
Hearst Museum of Anthropology
103 Kroeber Hall
UC Berkeley
Berkeley, CA 94720


Dear Interim Director Jud King,

Hello, my name is [*] and I am a NAGPRA representative for the [*] tribe. Per California Public Records Act (Government Code §§ 6250-6276.48), I am writing to request copies of the complete minutes from the meetings of the UC Berkeley Repatriation Committee meetings for the 2008 calendar year. We hope the minutes contain who attended the meeting, who the committee members were, how they voted on tribal claims, and the inventories, claims, etc. discussed in the meeting. If the minutes do not contain this information, I would like to know which documents do and I will then make a formal request for those.

I am willing to pay reasonable copying costs and postage. Your written answer to this request is expected in the next 10 days. We look forward to hearing from you.

Sincerely,

[*]

And by all means, let us know what you hear from Mr. King!

Does the UCOP Repatriation Committee comply with the California Public Records Act?

In last year's State Senate hearing, it became clear that the UCOP Repatriation Committee did not keep minutes of their meetings. As we come up on the one year anniversary of the hearings, it is time to find out if they are complying! Use the form letter below to find out:

Ms. Rebecca Landes
UCOP Repatriation Committee
Office of Research
1111 Franklin St.
Oakland, CA 94607-5200

Dear Ms. Landes,

Hello, my name is [*] and I am a NAGPRA representative for the [*] tribe. As a Federally recognized tribe, NAGPRA and repatriation are important to us. Per California Public Records Act (Government Code §§ 6250-6276.48), I am writing to request copies of the complete minutes from the meetings of the UC Office of the President Repatriation Committee for the 2008 calendar year. I hope the minutes contain who attended the meeting, how it was held (phone, email, in person, etc.), who the committee members were, what they discussed, and how they voted on tribal claims. If the minutes do not contain this information, I would like to know which documents do and I will then make a formal request for those.

We are willing to pay reasonable copying costs and postage. Your written answer to this request is expected in the next 10 days. We look forward to hearing from you.

Sincerely,

[*]

Just substitute your name and tribal affiliation where the [*] are. If you are not a tribal member, just change the sentence and let Ms. Landes know you want the information as a California resident. The UCOP Committee may have forgotten about things, but we haven't.

Prof. Tim White on NAGPRA and the events of 1995

Some more e-mail turned over by Ms. Sandra Harris for the State Senate hearings on February 26, 2008. Click on the images above to read Professor Tim White's views on NAGPRA and the events of 1995 (For another version of those events read the Luby report at http://nagpra-ucb-faq.blogspot.com ).