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Following the California NAGPRA legislation
Update: 8/1/01
Dr. John Johnson, Curator of Anthropology, Santa Barbara Museum
of Natural History reports: Considerable changes have been made
to the bill after a series of working meetings between Assemblyman
Steinberg, representatives of California tribes, the California
Association of Museums, University of California, state agencies,
and the Society for California Archaeology, etc. The bill's status
and current version of AB 978 as amended may be reviewed at http://www.leginfo.ca.gov/
...then search on AB978 for the most recent version.
Plea for help from California
5/22/01
Dear Friends of America's Past colleagues,
I am forwarding you a copy and comments on the frightening
newly proposed California bill (AB 978), that is designed to
empty the museums at the whim of Indian groups in California.
Not satisfied with the results of NAGPRA they have crafted a
bill, that besides likely transgressing federal and state takings
provisions, allows any Indian group federally recognized or not,
to walk into any museum and remove ANY object from the shelves
and take them away. This includes those objects legally purchased
by the State of California for the good of the people of the
state; All the people.
This makes the Kennewick case look like a walk in the park.
We at the state universities are doing what we can, but it looks
pretty grim.
I am asking for any help you can give. I have supported the
group in the past. Please get the word out and contact the Governor
of the State of California, and state Senators and Assemblypersons.
M. Steven Shackley, Ph.D.
Research Archaeologist
Director, Archaeological XRF Laboratory
SAS Managing Editor, Archaeometry
Phoebe Hearst Museum of Anthropology
103 Kroeber Hall
University of California
Berkeley, CA 94720-3712 USA
(510) 643-1193, ext. 3
http://obsidian.pahma.berkeley.edu
Colleagues:
Once again, I need to ask for your assistance in quickly reviewing
and marshalling our arguments re: the state NAGPRA bill, AB 978.
Assembly Member Steinberg's office has sent us the amendments
they plan to insert into the bill (see the attached Word file).
Not only do they not address UC's major concerns, but in several
respects the new language makes the bill even more problematic.
In addition to identifying policy problems with the bill as it
is proposed to be revised, we need to provide a cost estimate
(ASAP, but in any event before next Wednesday, 5/23 when the
bill is set to be heard in the Assembly Appropriations Committee)
of what it would cost UC to prepare new inventories that meet
the bill's criteria, to consult with non-federally recognized
tribes in preparing those inventories, and to comply with the
administrative procedures set out in the bill for repatriation.
Can you please provide me ASAP with a plausible cost estimate
for your campus? (Generally, only cost issues are considered
in Appropriations committees).
Steinberg's office did take a number of UC's suggested amendments,
including several that "cleaned up" some of the bill's
definitions to make them more consistent with NAGPRA. However,
they also added new language that broadens the scope of the bill
to cover new categories of objects not covered by NAGPRA and
retained most of the sections of the bill that we requested be
deleted, resulting in a bill that appears to be very problematic
for UC.
In short, the bill:
- could be construed to require UC campuses to do new inventories
(that are different from our NAGPRA inventories and that include
objects not covered under NAGPRA's scope);
- would expand the definition of cultural affiliation to
include non-federally-recognized tribes and would require us
to consult with non-federally recognized tribes, include them
on our inventories, and repatriate to them. The bill does not
provide a mechanism for defining which groups are tribes;
- would give the proposed state commission (consisting primarily
of Native American representatives) authority to make determinations
of cultural affiliation, to order us to repatriate remains and
cultural items from our collections (including objects that NAGPRA
does not require us to repatriate), to enforce repatriation agreements,
and to impose civil penalties; and
- would set up a new administrative structure for repatriations.
Many of these provisions appear to conflict with NAGPRA.
Please do take a look at the attached language. Also, below I've
pasted a more detailed synopsis of the bill as it is proposed
to be amended (along with some of the problems with the new language).
Please forward ASAP any new comments and recommendations, as
well as an estimate of what it would cost at your campus to implement
these provisions. The bill will be heard 5/23 in Assembly Appropriations
(this is the hearing that was supposed to be this week), and
our Sac'to office continues to advise us that it is unlikely
there will be an opportunity to make more than a brief statement
at that committee re: potential cost impact.
Obviously, I am very disappointed that the bill remains in
such a problematic form, particularly since Steinberg's staff
indicated in our meeting with them several weeks ago that they
were amenable to working with us to address our concerns. If
they do not intend to address our major concerns, UC may have
to go on record with an "Oppose" position, which is,
obviously, something that we would have liked to avoid.
Thanks for your help.
--Ellen
==============================
SYNOPSIS OF AB 978 as the author proposes to amend it (5/16/01)
The major provisions of AB 978 would:
- Require state agencies and museums to prepare (and send to the
proposed state commission) inventories of human remains and "cultural
items" (no longer just funerary objects) in their possession
or control, by July 1, 2002. The inventory requirement differs
from NAGPRA's inventory requirement in several significant respects
(including a broader scope of which items are to be inventoried,
a definition of cultural affiliation that includes non-federally-recognized
tribes, a requirement that certain objects be listed first on
the inventories, etc. See below). Although the bill includes
language in the definition of inventory that states that an inventory
"may be" the NAGPRA inventory, our General Counsel
previously advised that such language is not sufficient to clearly
exempt UC from having to prepare new inventories. We advised
Steinberg's staff of this in our meeting several weeks ago, and
we suggested striking this section or making it applicable only
to museums not already covered by NAGPRA -- but the language
remains in the bill. Thus, we are concerned that the bill would
require our campuses to undertake a significant new inventory
effort, which would be costly and burdensome.
- Expand the bill's scope to require museums and agencies
to inventory and repatriate not only Native American human remains
and funerary objects, but also other "cultural items,"
including a new category of items -- "tribal objects"
-- not covered by NAGPRA. Although NAGPRA applies to "cultural
items," NAGPRA only requires one category of cultural items
-- "associated funerary objects" -- to be included
on the inventories. NAGPRA requires three other categories of
cultural items -- unassociated funerary objects, sacred objects
and objects of cultural patrimony -- to be described in summaries,
which are much more general in nature than the more detailed
inventories. AB 978 would require that the other three categories
of objects be included on the inventories as well, and defines
those terms in ways that are inconsistent with NAGPRA. It also
adds a new category of objects -- traditional objects" --
to the definition of "cultural item," and defines this
to be "any object or item deemed by the affiliated tribe
to be integral to their customs and traditions." This is
a fairly broad and vague definition, and goes beyond what is
covered under NAGPRA. In addition to concerns about the burden
of having to go back and inventory such objects, I'd imagine
we would have concerns about being required to repatriate a category
of objects so broadly and vaguely defined. (It would be helpful
if you could elaborate on this point, provide examples of the
kinds of objects it might encompass).
- Define cultural affiliation to include non-federally-recognized
tribes. This is inconsistent with NAGPRA, which required us to
list on our inventories as "culturally affiliated"
only those remains and objects that could be affiliated with
federally-recognized tribes. The bill provides no mechanism for
defining which groups should be considered non-federally-recognized
tribes, which would be a problem for institutions required to
comply. The bill would apparently require us to include non-federally-recognized
tribes on inventories and in consultations, and to repatriate
to them as well. Steinberg's staff had told us that "state-recognized
tribes" would be deleted from the bill, because it was unclear
what the term meant. Changing "state-recognized" to
"non-federally-recognized" does not effectively address
this problem (and in fact appears to shift the burden of figuring
this out from the state to the institutions covered by the bill).
- Set up a state administrative process for repatriation, which
contains deadlines, definitions, and procedures inconsistent
with NAGPRA.
- Set up a state commission consisting of 7 Native American
representatives (6 of them voting members), two voting agency/university/museum
representatives, and one other nonvoting member. This commission
would have authority to make determinations regarding cultural
affiliation, to enforce repatriation agreements, to order repatriations,
and to impose civil penalties. The amendments did not address
our concerns re: the lack of balance on the commission nor did
they revise the commission's role to be advisory, like the National
NAGPRA Review Committee. We believe these provisions may be inconsistent
with NAGPRA; we will ask OGC whether these provisions also present
a state constitutional issue (with respect to the Regents' constitutional
autonomy).
- State (in a new provision, Section 8014(b)) that if the geographical
location of origin of an item can be ascertained, then a reasonable
belief of cultural affiliation is established and the claimant
group won't be required to present evidence of cultural affiliation
unless there are competing claims. My understanding is that our
scientific experts believe that geographical origin is not sufficient
to establish a cultural link with a particular group (since there
can be questions about whether a present day group that now occupies
a geographical region is closely related to the groups that previously
occupied the region). It would be helpful if some of you could
elaborate on whether/why this provision is a problem.
- Change the standards of proof that are required under NAGPRA
for showing cultural affiliation and requiring repatriation.
The bill still contains the language we previously identified
as problematic (stating that in disputes, the requesting party's
evidence of culturally affiliation shall be given a presumption
of validity and any ambiguities or uncertainties are to be resolved
in their favor). This conflicts with NAGPRA'"preponderance
of the evidence" standard. A new provision (8014 (b)) would
make an even more drastic change, providing that evidence presented
by tribes shall be given a presumption of establishing cultural
affiliation and the burden will be on the agency or museum to
"prove beyond a reasonable doubt" that the tribe's
evidence is incorrect. The "beyond a reasonable doubt"
standard is considerably different from the "preponderance
of the evidence" standard -- such a high standard of proof
is normally required only in criminal cases, I think. Even in
cases where the preponderance of the evidence leads to conclusion
that there is not affiliation with a particular group, it could
well be hard to prove that there could be "no reasonable
doubt" as to the validity of that conclusion.
- Require museums to repatriate items listed on their inventories
within 90 days of receiving a request, if there are no other
requests for those items. (Section 8015). This section does not
specify that any particular criteria (i.e., proof of cultural
affiliation) need to be met -- only that repatriation must take
place. This appears to conflict with NAGPRA, which sets out different
deadlines and prohibits repatriation until Federal Register publication
has taken place.
- Require that tribal oral histories, documentations and testimonies
be given "the same evidentiary weight" as archaeological
studies and documentation.
Note that the proposed author's amendments delete "private
individuals" from being covered by the bill; and delete
the requirement that we send copies of our inventories to all
state tribes (thus eliminating our cost arguments for that section
of the bill).
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