Point of no return

In 1990, the federal government compelled museums, universities and federal departments to inventory the American Indian objects and human remains in their vast archaeological collections. Thousands of human bones and teeth and skull fragments; beads buried with the dead; and bone tools, polished rock, obsidian arrow points and pieces of fired clay had been dug out of the ground and warehoused over the years by federally funded institutions. Locally, the University of California, California State University, the Bureau of Land Management, the California Department of Parks and Recreation, the Army Corps of Engineers—basically everyone who’s ever stuck a spade into the ground on behalf of the United States—discovered and collected American Indian artifacts. Under the Native American Graves Protection and Repatriation Act (NAGPRA), the most sacred objects, including human bones and their associated wealth, belonged once again to the tribes that placed them underground—in some cases, thousands of years ago.

One might assume that in 16 years, museums and universities would have distributed Indian bones and burial items by the truckload. Not so. For instance, how many items have been returned by a big university like UC Davis?

Zero.

The anthropology department at Davis complied with every legal obligation; with the help of American Indian consultants, the department painstakingly summarized its collection of American Indian artifacts, prepared a detailed inventory of human remains and objects buried with the dead, and notified Indian tribes that might be eligible to claim them. The final step was to publish the inventories and notices of “intent to repatriate” with the national NAGPRA office, under the National Park Service (NPS). UC Davis sent six notices to the NPS in 1995.

So far, no inventories or notices have been published online. Without those notices, no repatriation is possible.

Between staff changes at the national NAGPRA office and the slow turning of bureaucratic wheels, UC Davis’ collection has remained intact for a decade longer than it should have.

How much of the university’s collection is held up in this process?

“Ninety-nine percent of what we have isn’t subject to NAGPRA,” said UC Davis anthropology professor Robert Bettinger, explaining that most of the university’s collection is made up of fragments, debris, debitage—the flakes and remnants left over once a tool is fashioned from rock. The collection also includes remains from a minimum of 300 individuals.

“While many Indians might consider a projectile point sacred … it does not meet the [NAGPRA] standard,” said Bettinger.

But that important 1 percent that falls under NAGPRA is divided into various categories. Human remains that can be traced to a contemporary federally recognized tribe can be returned along with associated funerary objects. Sacred objects used in ceremonial rites and objects of “cultural patrimony” are eligible for repatriation, but tribes must prove that an item is theirs and that it’s needed for contemporary rituals.

“It sounds clean when you read it on paper,” said Bettinger, “but it’s not clean.”

Furthermore, the university can’t force tribes to pick up items that belong to them. Many tribes no longer maintain safe burial grounds.

Currently, human remains are housed separately in an inaccessible part of the university. They’re considered extremely sensitive. American Indians have visited the collection during consultation and have left behind medicinal herbs like sage and tobacco. Tribal leaders sometimes gather outside the building to burn herbs and pray on behalf of their progenitors.

SN&R was not allowed to view the collection, and Bettinger chose not to disclose which tribes were claiming ownership of remains.

The repatriation holdup, according to Bettinger, is with the federal NAGPRA office, which, he understands, is strapped for resources.

In Washington, D.C., Sherry Hutt, national NAGPRA program manager, turned up nothing when she hunted through her databases for any federal notices from UC Davis. Notice coordinator Jaime Lavallee, however, was able to dig up the original six draft notices topped with a Post-it note that says, “Needs consultation.”

Some of the notices had languished in the federal office for over a decade.

“We were unaware of the sticky note,” said Lisa Deitz, museum preparator for UC Davis’ anthropology department. Deitz said that the department has communicated with 273 tribal groups nationwide and has received requests for repatriation of human remains from three of them. She doesn’t know why the notices have never been published.

Bettinger claimed that the university has trouble reaching the national office. Hutt and Lavallee, who’ve both been in their positions for less than two years, remember receiving no contact from the university.

“Why this stack of notices didn’t go further than it did is a question I can’t answer,” said Hutt. “If the tribes had made a call, like you did, I’d be asking questions. If the museum called, I’d walk over to Jaime and say, ‘Put these on the top of the stack.’”

The same sorts of holdups have occurred time and again between institutions and the tribes with which they consult. University administrators retire, documents requesting information are lost, curators ask unanswerable questions, and claims for sacred objects or remains simply languish.

In early negotiations over the language of NAGPRA, the law was whittled down until it covered only a small portion of the nation’s American Indian artifacts, partly because the federal government chose to honor only the claims of federally recognized tribes. For instance, though Sacramento and San Francisco were home to California Indians for thousands of years, no federally recognized tribes reside here any longer.

If a tribe is recognized, recovering items is still expensive and time-consuming. Tribal leaders have to travel to view collections. They sometimes have to reveal to curators how items were used in secret ceremonies. They have to consult with multiple tribes that once inhabited the same geographic area.

If a tribe fails to prove “cultural affiliation” with an object, the object can’t be repatriated. It stays with the institution.

Jeff Fentress, NAGPRA coordinator for San Francisco State University, said that his school has 400 individuals represented in its collection of human remains, and 8,500 funerary objects. More than half of these items are ineligible for NAGPRA because they originated with unrecognized tribes, like the Bay Area Ohlone.

“Of all these materials,” said Fentress, “we’ve made two repatriations.” Altogether, 10 individuals and 650 objects have been returned.

The university also has a large collection of baskets, blankets and pottery. The return of those items is a whole different issue. “The burden of proof [of ownership] rests on the tribes,” said Fentress, who’s sympathetic. “Those kinds of records are passed down orally. … That kind of evidence is not given the same weight legally.”

California State University, Sacramento, also has a collection of remains. According to NAGPRA coordinator Elizabeth Strasser, “one-third of our burial-associated artifacts and almost 500 interments were reburied in 1986 and 1990. … We have 19 collections with grave-associated artifacts. Several of them are proceeding through the NAGPRA process, and one is being prepared for repatriation.”

The most recent annual report from NPS shows that 712 museums and 444 federal agencies have sent in inventories of human remains, “accounting for 31,571 human remains and 633,525 associated funerary objects.”

The NPS also has counted unidentified remains: “18,259 individuals for which cultural affiliation has not yet been determined and 830,130 funerary objects associated with those individuals.”

The federal NAGPRA law was never meant to return all items to American Indians, according to Bettinger. NAGPRA was really designed, in his estimation, to compel agencies and museums to open a discussion with American Indian groups and to take a look at their collections and determine which items were affiliated with which tribes.

Holly Hensher, NAGPRA coordinator for the Karuk tribe on the Klamath River, explained that compliance with the law “depends on the individual school or agency. Some are really willing to work with you. Others are not so willing.”

Hensher is working closely with five different institutions to repatriate items that were once collectively owned by her tribe. “We have a harder time with cultural items. It’s easier to justify burial items and human remains,” she said.

For instance, Hensher’s tribe regularly performs a series of world-renewal ceremonies. Every other year, the tribe uses the skin of a white wolf in its dances. Hensher has to drive to UC Berkeley and borrow the wolf skin and then return it at the end of the ceremonial season.

Though Hensher isn’t completely satisfied with the lending-library approach to ceremonial objects, it beats having no access. California Indians who have cut their ties with the federal government and are not federally recognized have little hope under federal law of repatriating artifacts.

Darrell Steinberg championed a bill passed in 2001 that’s known as California NAGPRA. It’s written to help non-recognized tribes participate in repatriation programs. The California Repatriation Oversight Commission, which includes Bettinger, is tasked with identifying a broader list of state-recognized tribes. But the state program has no funding, leaving it in a kind of limbo, which continues to frustrate local Indians.

Luckily, tribes don’t have to meet any kind of timeline. Institutions that have collected artifacts and remains are obligated to curate them responsibly until tribal leaders choose to collect them.

By law, NAGPRA is forever.