The Review Process
Many NAGPRA supporters have written to Lightfoot asking whether he thought the review was fair and whether the implementation should be delayed until Native American voices were heard. Lightfoot essentially ignores these questions, and focuses on what he considers the “substance” of the decision. He only alludes to the process once:
Although some have questioned how this reorganization was made and communicated, this is an internal reorganization that is designed to improve our ability to work with individual tribes on specific repatriation claims.
I too want to focus on the substance of reorganization, but I do not believe we can dismiss the issue of process so quickly. The fairness of a decision-making process is extremely important in a situation like this, where there are multiple stakeholders with interests that often conflict. If one group is unjustly excluded, the outcome is likely to be detrimental to that group and will not be perceived as legitimate. In my view, that is what happened here, and the University’s decision can only redeem its legitimacy if the issue is reopened and settled by means of a just process.
One wonders why Lightfoot feels no obligation to answer questions about fairness and has no qualms about implementing the decision. From what he says, he apparently thinks that the people asking the questions lack standing and that their opinions are irrelevant. In his view, “this is an internal reorganization,” and therefore, none of the tribes’ or the public’s business.
I believe he is wrong about this. When an internal process is unfair and discriminatory in a way that negatively affects an external constituency, that constituency has every right – as does the public at large – to object to the process. The University of California is a public institution sustained by tax-paying citizens. UC Berkeley has an even stronger obligation to tribes in virtue of the state (AB978) and federal NAGPRA statutes. These laws require that the University satisfy legitimate tribal claims on its collection of Native American ancestral remains and artifacts. Accountability under the law requires transparency, and the tribes cannot determine if the University is acting in good faith if they have no access to the processes that govern NAGPRA administration. Also, American Indians believe that their ancestors’ remains belong to them and that they have every right to be included in a process that affects what is rightfully theirs.
Therefore, Lightfoot has an obligation to defend the review process. He should stop stonewalling and give Native Americans and all NAGPRA supporters an explanation of why he thinks it was fair. The process was secretive, sudden, scheduled at a time when much of the University community was gone, and the purpose of the review was not revealed to the NAGPRA staff. More importantly, all Native Americans were intentionally excluded in spite of my protests, which Lightfoot simply ignored. Lightfoot and Vice Chancellor Burnside also refused to speak directly to the NAGPRA unit, which includes three Native Americans. In fact, everyone who played a role in the reorganization decision was white. Lightfoot, Burnside, Price, Chancellor Birgeneau, Bettinger and Walker (the two archeologists on the review team) are all white. Lightfoot has an obligation to explain why there wasn’t an Indian in the group. Is this really just a problem with “how the reorganization was communicated”?
If Lightfoot refuses to answer these questions, the obligation falls to the Chancellor, who has final authority at the University and who has endorsed the review process. Unfortunately, the strategy of both men has been to stonewall and let the “facts on the ground” take over and institutionalize the decision before people can react. This is why I ask you to join me now in a strenuous protest and in a demonstration we will be holding at the University in the near future. Emails with details will be coming soon.
Someone might reasonably ask, “Even if the review process was exclusionary and paternalistic, why should we expect the content of the decision to be negative for Native Americans?” The reason extends beyond the deciders’ race. The problem is not simply that everyone was white; the problem is also that this particular group of academics and administrators was dominated by research scientists. Lightfoot, Walker, and Bettinger are research archeologists; Beth Burnside is a cell biologist; and the Chancellor is a physicist. The only non-scientist in the group is Robert Price. More specifically, the three scientists who specialize in archeology have vested professional interests in keeping museum collections of Native American ancestral remains and artifacts intact. Since tribes lay claim to parts of these collections, these archeologists also have vested professional interests in shaping NAGPRA programs that favor their interests, contrary to the interests of Native Americans.
This is not just an abstract problem; an unrestrained research bias has had extremely negative impact on the Phoebe Hearst’s NAGPRA program for years. Consider, for example, a passage from a 2000 report by Edward Luby, the first Director of the NAGPRA unit.
In November 1995, Professor Tim White attempted to submit an inventory [in which] virtually all human remains yet to be inventoried were determined to be “culturally unidentifiable” [not associated with any tribe], with no evidence supplied as to why this was the case. Even more serious, however, and contrary to statutory language, the inventory was not associated with evidence that consultation with Indian Tribes had taken place, nor were associated funerary objects listed. In addition, this inventory did not accurately reflect the museum’s documents, and the descriptions of the geographic and cultural affiliations of human remains listed were insufficient.
Luby also reports that White had “repeatedly harassed and insulted” him and had “alleged on several occasions that [Luby] had committed fraud, colluded with federal agencies, and was incompetent.” Professor White’s aggressive attitude toward NAGPRA has not changed. As Chair of the UC Berkeley Repatriation Committee, he was interviewed at length about the fate of the NAGPRA unit, and under the reorganization plan, this Repatriation Committee will exercise authority over the new Repatriation Coordinator and other NAGPRA operations. I should also note that Robert Bettinger, one of research archeologists who made the reorganization recommendations, has a history of hostile relations with tribes over repatriation issues.
Given the ethnic make-up of the group that participated in the reorganization decision, their extreme bias toward research, and their record of negativity toward NAGPRA claims, it is hard for me to understand how Professor Lightfoot and Chancellor Birgeneau can honestly present the review process as fair. Yet when I raised my objections to the Chancellor, he completely dismissed me by saying, “In complicated matters such as this, it is to be expected that people will have very different views of what is the right course of action.” Although this is certainly true, one wonders why only the views of white archeologists count. The Chancellor’s attitude is ironic, to say the least, given that he represents himself to the world as a proud and steadfast champion of inclusion and diversity.
The Substance of the Decision
Lightfoot presents the reorganization in this way:
The primary change that is taking place is the inclusion of the NAGPRA staff within the museum organizational structure. Since the late 1990s, the NAGPRA unit has served as a relatively autonomous group … However, several reviews since 2001 have strongly recommended that the unit be integrated into the Museum to maximize the use of its staff expertise.
As far as I know there has only been one bona fide outside review since 2001, other than the most recent review by Walker and Bettinger. But even if I am wrong, it is crucial to understand that the review committees have operated on a basic assumption, which is implicit in Lightfoot’s comment. The idea is that the effectiveness of the NAGPRA staff is maximized to the extent that it contributes to the overall effectiveness of the Museum. Indeed, the Museum hires review committees with the expressed purpose of enhancing its overall performance (and with the unexpressed purpose of justifying decisions that have already been made). The operating assumption is that NAGPRA goals are just a subset of Museum goals, and that NAGPRA operations should be subordinate to Museum operations. But this assumption is false. The goals of NAGPRA and the goals of the museum are not always the same, and should not be confused. The goal of NAGPRA operations is to administer state and federal laws in good faith and as effectively as possible. NAGPRA goals can – and often do – conflict with the aims of the Museum, especially this Museum which has a history of negative relations with tribes. If the University subordinates NAGPRA operations to Museum goals, it significantly reduces the chances that the consultation process will be administered impartially and effectively, with any equal concern for all stakeholders.
The fact is that the autonomy of the NAGPRA unit is essential to the integrity of NAGPRA administration. The NAGPRA staff needs to work in an environment where they are not under constant pressure from research scientists who want to preserve the collection at the expense of Native Americans. This is why Douglas Sharon, the previous Museum Director, recommended in a 2006 letter to Vice Chancellor Burnside that the administrative control of the NAGPRA unit not only be removed from the Museum but also from the Office of the Vice Chancellor of Research (her office). He suggested placing NAGPRA operations under the control of the Chancellor. In my letter to the Chancellor, I suggested the same thing, but in light of the Chancellor’s total indifference to Native Americans on this issue, I now believe the unit should be moved to the Center for Race and Gen der in the Office of the Provost.
Lightfoot claims that the reorganization does not diminish the Museum’s commitment to Native Americans and that he is actually adding positions dedicated to their service. He is increasing the number of staff members devoted to what he calls “repatriation activities” from four to seven. He also insists he is not “disbanding” the NAPGRA unit; he is just dispersing them into Museum operations so they can help other Museum employees get more involved in “repatriation.” These assertions are extremely misleading.
What the NAGPRA unit does is consult with tribes about possible repatriations, and this requires a highly skilled, knowledgeable and culturally sensitive team. Tribal representatives come to the museum to see all of the documentation related to as many as fifteen archeological sites, view items within the collections, and determine what is rightfully theirs. In order to give them fair access to the evidence, we have to prepare extensively for their visit and do archival research for the appropriate documentation. When they come, we show them the documentation, explain the often arcane reasons why certain items are classified as culturally unidentifiable, help them evaluate evidence to the contrary, and advise them on how to prepare their challenges and their claims. After they leave, we assist them remotely, often for months.
It is simply not true that seven staff members will be devoted to this kind of consultation. Under the envisioned reorganization, one – or at most, two – will engage in tribal consultation, and only on a “case by case” basis. Lightfoot’s term “repatriation activities” is a deceptive euphemism that actually refers to any Native-American related activity such as educational outreach, etc. For example, I have been reassigned to the position of Tribal Coordinator, which makes no use of my NAGPRA experience even though I know more about NAGPRA operations than anyone on campus. Yet Lightfoot counts my position as one of the seven devoted to “repatriation activities.” Also, the Museum has a history of co-opting positions that are supposedly related to genuine NAGPRA operations. For example, the NAGPRA budget has paid the entire salary of a NAGPRA/North Amer ican collection manager, but the unit has only had access to about 20 percent of her time. She spends the bulk of her time working on non-NAGPRA related assignments. Once NAGPRA operations are “folded into” the overall activities of the Museum, this sort of thing will happen far more often.
But the most important issue has nothing to do with the actual duties of the new staff members. Even if all of the new staff under the reorganization were devoted to NAGPRA, they would still be completely controlled by research scientists with a vested interest in preserving the collection. Therefore, the staff would not have the freedom to offer fair, impartial and comprehensive consultation services to tribes. Native Americans will not be provided with the kind of support services they need. This is the issue that Lightfoot’s letter completely ignores, and yet, this is the critical issue. Most tribal representatives aren’t experts at NAGPRA and need the help of trained, skilled and fair-minded consultants who respect their status as stakeholders. This service will disappear under the new NAGPRA reorganization.
Lightfoot touts several “secondary” benefits of the reorganization such as non-NAGPRA-related Native American services, workshops, loans, etc. All of these things sound great, and the NAGPRA unit would be happy to participate. In fact, we have suggested many such activities in the past, and offered to organize and supervise them. Our suggestions have been ignored. Yet the important point is this: all of these benefits can be easily offered without disbanding the autonomous NAGPRA unit and without sacrificing the integrity of NAGPRA operations. Indeed, an autonomous NAGPRA unit would facilitate the new services. (See my Letter to the Chancellor, pp 4-5.) Lightfoot insinuates that Museum must choose between offering the new benefits and keeping the NAGPRA unit intact . There is absolutely no basis for this claim. Lightfoot is presenting Native Americans with a false choice.
If you have any questions about the issues in Lightfoot’s letter, please call me at 510-652-1567or 510-457-8569. Otherwise, please email, write or call the Chancellor, the Governor, and anyone else you can think of to protest the reorganization. And join our upcoming demonstration at UC Berkeley. We will be setting a date and time soon. Please support the Native American Tribal NAGPRA Committee’s demand that the Chancellor meet with tribes and initiate a new review process that represents the views of all stakeholders.
Larri Fredericks, PhD
Interim NAGPRA Coordinator (March 2006 – June 2007)
Senior Museum Scientist/NAGPRA (May 1999 – February 2006)
NAGPRA Autonomy = NAGPRA Integrity!