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New California repatriation law includes enforcement teeth

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SACRAMENTO, Calif. ? In 1990, the first President Bush signed the Native American Graves Protection and Repatriation Act (NAGPRA) into federal law. It required repatriation of American Indian remains housed in museums and academic institutions.

By the late 1990s it appeared the federal law lacked authority and a majority of the remains were still housed in museums and colleges throughout California.

State tribes complained that institutions were dragging their heels in complying with the federal law. Though a few university and museum officials opposed repatriation, most of the institutions said they supported it but lacked resources to properly catalogue and distribute the remains.

In 1997, 12 bands of Kumeyaay Indians in southern California spearheaded an effort to make sure federal laws were followed. Their efforts ultimately resulted in the California Native American Graves Protection and Repatriation Act that was signed into law by Gov. Gray Davis Oct.14.

Essentially the new law, which goes into effect Jan. 1, sets up an enforcement commission for the federal law. Schools and museums that receive public funding will have until January 2003 to return remains and other culturally important artifacts to the appropriate descendant tribes from which they originally were taken.

The new commission under the state Attorney General's Office will be comprised of 10 members, seven of which must represent California Indian tribes with the remaining three representing public museums and universities.

The commission will have the power to do what the federal law did not ? levy fines up to $20,000 for non-compliance.

Another difference from the federal law is that non-federally recognized tribes can be designated recipients. This part of the law is important in California where many tribes were terminated by congressional acts in the late 1950s and early 1960s.

This is especially important in the San Francisco Bay area where some of the largest collections are housed in institutions like the University of California, Berkeley. A large part of these collections are remains of unrecognized Bay area tribes such as the various groups of Ohlones.

Dick Hitchcock, NAGPRA coordinator at the University of California's Hearst Museum of Anthropology in Berkeley, said that upon passage of the new state law, he received a list of state recognized tribes to add to his potential recipient list.

But he said the problem is that there are several other tribes which are not recognized by either the state or the federal government and it is unclear how best to handle what he termed "culturally unidentifiable" remains and artifacts.

"Ultimately, all of the leftover artifacts are going to go into the ground and will be given to someone, we just don't know how or to whom yet," Hitchcock said.

Larry Myers, the executive secretary for the California Native American Heritage Commission said he is disappointed that only one seat on the new enforcement commission will go to a member of an unrecognized tribe.

Myers added it remains unclear how the federal and state laws will work together.

"The main problem seems to be with penalties. Will the new state commission get to levy the designated fines in the new state law or will they have to follow the federal formula?" Myers asked.

Despite these concerns Myers hailed the decision and said he sees it as a tool for moving repatriation forward.

The issue of repatriation, like many American Indian issues is complex. The remains cannot simply be boxed up and returned. Many institutions have thousands of individual remains from numerous tribes and other Indigenous peoples, including Filipinos and Native Hawaiians.

Last year independent estimates by the California Native American Heritage Commission were that 80 had not yet been catalogued. This year, the same office reports that most remains have finally been catalogued under increased pressure, though there have been no formal reports. University of California sources say Berkeley's collection has been in compliance for the past year.

San Francisco State University has been in compliance with the 1990 federal law for the past five years and has been at the forefront of several peripheral issues surrounding repatriation.

Jeff Fentress, its NAGPRA coordinator, said the university began cataloguing the artifacts and remains in 1996 and began the process of returning items to tribes. He estimated the university has remains of some 500 individuals, a relatively small number compared to larger institutions like the University of California, Berkeley, where there are remains of more than 9,000 people.

"We felt that it was in the spirit of the law (NAGPRA) to immediately begin compliance," Fentress said.

However, Fentress added it is simply a matter of just returning the artifacts and remains. In the 1950s, many institutions sprayed their collections with pesticides to better preserve them. Today many of the remains are contaminated with traces of hazardous materials such as mercury and arsenic.

In October of 2000, San Francisco State was host to a conference on contamination and tried to come up with a comprehensive strategy to handle the situation.

A further complication was the fact many tribes were uneasy about further molestation of remains as a result of testing.

Though no human remains have been tested, San Francisco State tested several artifact collections and found widespread traces of mercury.

Fentress said the university is following a policy of "full disclosure." Tribes are given notice before they receive the artifacts as to the level of contamination and also are given a series of detailed safe-handling instructions.

Myers said he sees some potential problems with the testing.

"What if only one corner of an artifact is tested and the majority of the contamination is on the other side?"

He also said he is concerned that neither the federal or state laws address the problem of contamination or grants any funds to research the issue.

Myers said any ground where tainted items were reburied would become contaminated. If the reburied items are located near water sources, they too could be contaminated.