Letter to Provost Hume

October 30, 2007


Provost Wyatt R. Hume
University of California Office of the President
1111 Franklin Street, 12th floor
Oakland, CA 94607

Dear Provost Hume:
The American government has a history of betraying solemn covenants with Native American tribes, and this has caused great tragedy and ongoing bitterness and suspicion. Unfortunately, history is repeating itself at the University of California at Berkeley (UCB), and the Native American NAGPRA Coalition is asking you to intervene. We are an association of federally recognized tribes, tribal people and social justice allies who have come together to protest UCB’s violations of both the spirit and letter of the Native American Graves Protection and Repatriation Act (NAGPRA). Thus far, UCB administrators have been unwilling to hear our concerns or even acknowledge our existence. We regard this treatment as an act of profound disrespect and hope that you will not repeat it.


Sovereignty and Consultation

The United States has a unique legal relationship with American Indian tribal governments defined in history, the U.S. Constitution, treaties, statutes, Executive Orders, and court decisions. Since the formation of the union, the United States has recognized Indian tribes as domestic dependant sovereign nations. Tribes are first nations, and public officials are obliged to acknowledge this sovereignty, especially with respect to laws of vital importance such as NAGPRA. Such laws regulate government to government relations – not simply relations of a single government to its own citizens. When an American governmental institution makes a decision that seriously affects a binding legal relationship with a tribe, that institution has a moral and often legal obligation to consult respectfully with tribal representatives. If the institution abrogates, alters, or reinterprets the law without consultation – or if it fails to make a good faith effort to comply – deeply rooted antagonisms reassert themselves and destroy the basis of trust and respect upon which all future relations depend. Consultation is the key to overcoming historical distrust; when tribes are respected as sovereigns and included in decisions that affect their central concerns, government-to-government relations can be mutually beneficial.

Chancellor Robert J. Birgeneau, Associate Chancellor John Cummins, Vice Chancellor Beth Burnside and other administrators at Berkeley have failed this fundamental test of respect. They have completely and deliberately excluded tribes from crucial decisions affecting Native American ancestral remains and sacred objects; they have refused to reevaluate these decisions in light of tribal guidance; and they have ignored our tribal Coalition’s request to meet and discuss the future of NAGPRA at Berkeley. This arrogance and contempt for tribal governments has not only poisoned the relationship between UC Berkeley and many Native Americans, but threatens to undermine tribal relations with the entire UC system, which has systemwide NAGPRA obligations to tribes. The situation is urgent, and we respectfully ask you to do what the Chancellor refused to do – recognize that NAGPRA regulates government-to-government relationships and meet with tribal leaders to repair the relationship before the damage is irreparable.

Exclusion

Administrators at UC Berkeley present themselves as champions of diversity and inclusion. For example, in a passage on the University website, the Chancellor states:

Inclusion here is not an aspiration; it is an imperative…. We must explore and demonstrate how we can live together and prosper... We must ensure that all of our communities, here and across the globe, benefit from the products of our work. This is what it means to be a public university. This is who we are.

The University’s actions have not matched the Chancellor’s words. Indeed, the University’s NAGPRA policies have been intentionally designed to exclude sovereign tribes and to severely limit and control the input of all Native Americans. This discrimination and paternalism has had a profoundly negative impact on Native Americans’ right to control their ancestral remains, which is a basic human right extended to virtually every other group in our society. Although our grievances are too far reaching and complex to be thoroughly discussed in a letter, they fall roughly under four headings:

1. Non-compliance and failure to consult on NAGPRA inventories. UCB’s Phoebe Hearst Museum houses the second largest collection of Native American remains in the Nation – approximately 12,000 biological individuals – and the largest collection covered by NAGPRA. The law requires the Museum to acknowledge legitimate tribal claims on ancestral remains and sacred objects and return them to the tribes. The University contends that it has complied with NAGPRA. This is untrue, and any certification of compliance was obtained by submitting false information to the certification board.

NAGPRA directed museums to submit an inventory of its Native American collections by 1995, although UCB didn’t finish until 2000. Before submitting the inventory, museums were required to determine which remains and artifacts could be traced to specific tribes. When this was possible, the items were classified as “culturally affiliated” and repatriated. Museums were allowed to keep the rest of the remains indefinitely, which were designated “culturally unidentifiable.” UC Berkeley classified less than 20 percent of its remains and artifacts as culturally affiliated and more than 80 percent as culturally unidentifiable. Some of the remains in the latter category were found in areas not associated with federally recognized tribes, but most were discovered in federally recognized tribal territories.

Although the University has repatriated the culturally affiliated remains, it is out of compliance with respect at least 60 percent of the original collection. This is because NAGRPA also required that museums make a good faith effort to consult with tribes before submitting their inventories and to consider tribal evidence for cultural affiliation. Acceptable evidence could be historical, geographic, linguistic, based on oral tradition, etc., as well as archaeological. The law mandated that the standard for deciding whether remains were affiliated was the “preponderance of the evidence.” This means that all evidence should have been considered before classifying remains as culturally affiliated or unidentifiable. However, UCB did not make a genuine effort to consult with tribes, and hence, did not give tribes a chance to present evidence. To the extent that consultation occurred at all – and usually it didn’t – it was entirely inadequate and did not meet NAGPRA legal requirements. For this reason, Coalition tribes are filing Letters of Non-Compliance with National NAGPRA, and we are urging other federally recognized tribes to do the same. The Coalition and other tribes will also be filing a lawsuit to force the University to reopen the inventory consultation process.

2. Exclusion and research bias on repatriation committees. When a tribe submits a claim on items in the culturally unidentifiable portion of the Hearst collection, the claim has to be adjudicated by two repatriation committees, one on campus and one at the UCOP level. For years the UCB Repatriation Committee has been chaired by an osteologist notorious for his documentable hostility toward NAGPRA, and at the moment, the committee includes three other scientists and no Native Americans. In the past the committee has only included one Native American. The UCOP committee is composed of five research scientists, one attorney, and two Native Americans, one from a federally recognized tribe and one from an unrecognized tribe. UCOP has also recently asked another physical research scientist to represent UC San Diego on the committee.

Scientists often have a professional stake in keeping collections intact for the purposes of research, even when the research violates Native American spiritual beliefs and practices. Hence, they tend to be biased against tribal claims, and the lack of balance in committee membership inevitably leads to biased decisions. Specifically, scientists on repatriation committees tend to ignore the evidentiary standard mandated by NAGPRA, which is “preponderance” rather than archaeological certainty. Hence, even when archeological evidence is inconclusive, the repatriation committees routinely dismiss tribal claims based on the other kinds of evidence deemed acceptable by NAGPRA. The Coalition believes that the repatriation committee system is in need of radical reform: for every scientist on the committee there should be a Native American, and we demand that tribes select the Native American representatives. This latter issue is pressing: the Phoebe Hearst will soon replace the single Native American who was on the UCB committee and who quit in disgust when the NAGPRA unit was eliminated. Administrators should not be allowed to hand-pick a Native American employee who depends on the Museum for his or her job. Tribes should make this selection.

3. Exclusion and the elimination of the NAGPRA unit. Until recently a semi-autonomous unit, which included three Native Americans, administered NAGPRA at the Hearst. The relative autonomy was important because staff members did not have to fear for their jobs if they acted impartially. The independence made it possible for staff to resist undue pressures from Museum administrators and research scientists. Such pressure was constant and can be documented. For example, Edward Luby, the first NAGPRA coordinator, reported in 2000 that Professor Tim White, the osteologist who curates the Hearst’s North American collection and chairs the UCB repatriation committee, “repeatedly harassed and insulted” him and “alleged on several occasions that [Luby] had committed fraud, colluded with federal agencies, and was incompetent.” This kind of pressure was so persistent that former Museum Director Douglas Sharon recommended in 2006 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. Yet, in spite of the pressure, the NAGPRA unit’s autonomy enabled staff to withstand researchers and provide fair and comprehensive NAGPRA services. This earned them the respect and appreciation of tribes.

In July of 2007 the University decided to eliminate the NAGPRA unit and “integrate” its functions into the larger Museum. The decision was based on the recommendations of a “committee” composed of two non-native research scientists, both of whom sit on the UCOP Repatriation committee and both of whom have had strained relations with tribes over NAGPRA issues. A group of non-native administrators – mainly scientists – commissioned the review committee, selected its members, and accepted its results without soliciting any input from Native American tribes. The administrators even refused to speak directly with the Native Americans on the NAGPRA unit, and their only input was through brief interviews with the two archaeologists. Prior to the review, the unit Coordinator strenuously protested the complete exclusion of tribal representatives, but her objections were summarily dismissed. In an email inadvertently sent to the wrong person, Vice Chancellor Burnside stated the administration’s position unequivocally: the University should “not go near the idea [that tribes] should be on the review committee. That's an absolute no. Maybe better to stonewall altogether.” The administrators did stonewall, and the subsequent reorganization was exactly what could be predicted from an exclusionary process: the autonomous nature of the NAGPRA unit was eliminated and NAGPRA operations were subordinated to research goals of scientists and the institutional goals of the Museum. As of now, not a single Native American has any significant authority over NAGPRA at the Hearst.

After Vice Chancellor Burnside announced the reorganization, the Interim NAGPRA Coordinator wrote a detailed appeal to Chancellor Birgeneau explaining the importance of the NAGPRA unit, objecting to the exclusion of tribes in the review process, and asking that he meet with the NAGPRA staff to discuss it. In a brief written response, he simply ignored every substantive point in the Coordinator’s letter, said nothing about the deliberate exclusion of tribes, and ignored her request for a meeting. When he dismissed her appeal, he stated: “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.” It apparently did not strike him as the least bit ironic that the only views he considered were those of two white archaeologists and his white subordinates. To this day, Associate Chancellor Cummins completely dismisses the notion that “the organizational efforts are somehow racially motivated and do not serve the interests and needs of the native tribes.” Not a single tribal representative was consulted in the reorganization process, and neither Cummins nor the Chancellor has ever explained why.

We believe tribes were not consulted precisely because the review and subsequent “organizational efforts” were intended to serve the aims of research and the Museum’s institutional goal of keeping the collection intact. The reorganization does not serve the interests of tribes because it destroys the autonomy of NAGPRA services and places NAGPRA operations entirely under the control of white bureaucrats and scientists. Tribal representatives would have understood this and would not have endorsed the archaeologists’ recommendations. Yet the Chancellor, Cummins and Burnside have been completely dismissive of tribal concerns throughout this ordeal. They will not acknowledge the possibility that a genuine conflict of interest can exist between the goals of science and Native American spiritual beliefs. Hence, they ignore the idea that the autonomy of NAGPRA services preserve the integrity, and have never publically addressed this point, even to explain their position. The Berkeley administration’s attitude and behavior falls squarely under the definition of ethnocentrism found in Bulletin 38 of the National Historic Preservation Act: “Ethnocentrism means viewing the world and the people in it only from the point of view of one’s own culture and being unable to sympathize with the feelings, attitudes, and beliefs of someone who is a member of a different culture. It is particularly important to understand, and seek to avoid ethnocentrism in the evaluation of traditional cultural properties.”

4. The chancellor’s refusal to meet with sovereign tribal leaders. UCB administrators not only failed to avoid ethnocentrism in their exclusion of Native Americans, they exacerbated the insult by their subsequent treatment of tribal leaders. On August 6, the Native American NAGPRA Coalition delivered a letter to Chancellor Birgeneau asking that he stop the reorganization, reopen the review process to include tribal representatives, and meet with the Coalition to discuss NAGPRA administration at Berkeley. We have included that letter in a support packet, and you can judge for yourself whether or not it was reasonable and respectful. We asked that he respond by August 17. He ignored us. However, on the evening of the 17th, Andrea Hoch from the Governor’s office called our representative and offered to set up a meeting with the Chancellor. We agreed, and over the course of the next month, we exchanged lists, information and requests with Associate Chancellor Cummins. After dragging the process out as long as he could, Cummins contacted our representative, told him that there would be no meeting, that the reorganization would proceed as planned, and that interactions between tribal representatives and the University regarding NAGPRA would be restricted to discussions with Judson King, the new Museum Director. The Chancellor later reiterated this in a letter to federally recognized tribes: “All communications concerning Hearst Museum activities including NAGPRA matters should be directed to Professor King.” Dr. King, of course, has no power to change the fundamental structure of the reorganization. Ironically, in the very same letter, the Chancellor insists that Professor King would be initiating “conversations” with tribes about the “processing of NAGPRA-related claims and repatriations.” In our view, the Chancellor’s action represents the worst form of paternalism that says, “We know what’s best for Native American people; we’ll decide how their ancestors are treated. The Museum Director will consult with them, but only after we’ve made all of the important decisions, which they are not competent to make themselves.”

Restoring the Relationship

By ignoring tribal governments, Chancellor Birgeneau has disregarded the concept of tribal sovereignty and has insulted Native American people. As representatives of sovereign governments, our tribal leaders have a stature that is, at the very least, comparable to the Chancellor of a University. They expect to meet with someone with the power to make fundamental decisions that can repair a damaged relationship. Chancellor Birgeneau has shown contempt for tribal status, and the Coalition will not settle for someone with less authority. Hence, we are asking you to meet with our Coalition; you have the power to make the relationship whole again, and we urge you to do so.

We hope you do not share Chancellor Birgeneau’s view that the administration of NAPGRA is an “internal management issue.” Nothing could be further from the truth. The University of California is a public institution that is obliged to adhere to the highest standards of non-discrimination. When decisions have an extremely negative impact on a specific community; when that community is deliberately excluded from the decision process; and when that same process heavily favors opposing interests, internal management perogatives must give way to concerns of public justice. Moreover, the University must acknowledge that while its museum may temporarily control ancestral remains and sacred objects, control does not constitute ownership. Native American remains and sacred objects belong to Native Americans. Therefore, tribes have the right to participate in the formulation and administration of policies that crucially affect the treatment of their ancestors’ remains.

After dealing with these issues for several months, one frustrating experience keeps repeating itself. It is clear that administrators at UC Berkeley, within the larger UC system and Board of Regents, and within educational departments of the state government have developed long-standing relationships and loyalties. Hence, when an issue arises with respect to one administrative division, supervisors at other levels tend to ignore complaints from external parties and rely exclusively and uncritically on “reassurances” from administrators within the division itself. We truly hope you will resist this impulse. Although we certainly expect you to call administrators at UC Berkeley for their side of the story, that story is riddled with deliberate falsehoods that attack the character of our members and diminish the import of tribal concerns. We will not take up the details here, but we will certainly respond when we meet in person. However, if you simply accept the University’s position and refuse to meet, you will engage in the very kind of exclusion that has characterized this process from the beginning. We respectfully ask that you acknowledge the status of sovereign tribal governments and not simply rely on officials within your own.

We would appreciate a response to this letter by November 16, 2007. Please contact our Coalition representative Mark LeBeau at 916-801-4422 or marklebeau@crihb.net. We will also distribute courtesy copies of this letter to journalists and to 107 federally recognized tribes. Thank you.

Respectfully,

The Native American NAGRPA Coalition: Reno Franklin, the Kashia Pomo Tribe; Lalo Franco, Santa Rosa Rancheria Tachi Yokut Tribe; Bennae Calac, Pauma Band of Mission Indians; Ted Howard, Shoshone-Paiute Tribes of Duck Valley and the Great Basin NAGPRA Coalition; Radley Davis, Advocates for the Protection of Sacred Sites; Douglas Mullen, Greenville Rancheria; Silvia Burley, California Valley Miwok Tribe; James Hayward, Redding Rancheria; Mark LeBeau, Advocates for the Protection of Sacred Sites; Otis Parrish, Kashia Pomo Elder; Dr. Larri Fredericks, Alaska Athabascan; Dr. Mark Hall, archeologist; Dr. Amy Lonetree, Assistant Professor of American Studies, University of California, Santa Cruz, Ho-Chunk Nation of Wisconsin; Jessica LePak, UCB graduate student and Oneida/Mohican; Morningstar Gali, Mills College, Pit River Nation.

CC: 107 Federally Recognized Native American Tribes