E7-1964. Native American Graves Protection and Repatriation Review Committee Findings and Recommendations Regarding Cultural Items in the Possession of the Field Museum

AGENCY:

National Park Service, Interior.

ACTION:

Native American Graves Protection and Repatriation Review Committee: Findings and Recommendations.

SUMMARY:

At a November 3-4, 2006, public meeting in Denver, CO, the Native American Graves Protection and Repatriation Review Committee (Review Committee) considered a dispute between the White Mountain Apache Tribe and the Field Museum. The dispute focused on whether 33 items (catalogue records) in the possession or control of the Field Museum are “objects of cultural patrimony” and whether the Field Museum has a “right of possession” to them under provisions of the Native American Graves Protection and Repatriation Act (NAGPRA) [25 U.S.C. 3001 et seq.]. The Review Committee finds that, by a preponderance of the evidence, these items are “objects of cultural patrimony” and that the Field Museum does not have a “right of possession” to them.

SUPPLEMENTARY INFORMATION:

In 1993, the Field Museum provided the White Mountain Apache Tribe with a summary of its Apache collections as required under provisions of NAGPRA. White Mountain Apache Tribe representatives visited the Field Museum in 1995, 1997, and 2000.

On May 30, 2002, the White Mountain Apache Tribe submitted a claim to the Field Museum for 33 items (catalogue records) identified by the tribe as both sacred objects and objects of cultural patrimony. The tribe asserted that the Field Museum did not have right of possession to the 33 items.

On June 20, 2003, the Field Museum responded to the White Mountain Apache Tribe's claim. The museum concurred with the tribe's identification of the 33 items as sacred objects. The museum did not agree with the tribe's claim that the items were objects of cultural patrimony nor that the museum did not have right of possession. The museum offered to return the 33 items to the White Mountain Apache Tribe with the condition that if any of the items are ever alienated by the tribe they will be returned to the museum.

On June 4, 2004, the Field Museum offered to remove the reversionary condition contingent on passage of tribal legislation, in a form agreed upon by the museum, which identifies the 33 items as sacred objects under NAGPRA, and that any item repatriated to the White Mountain Apache Tribe shall be considered inalienable property of the tribe.

On March 17, 2006, the White Mountain Apache Tribe requested the assistance of the Review Committee in resolving its dispute with the Field Museum.

On March 23, 2006, the Review Committee's Designated Federal Officer acknowledged receipt of the request and identified questions as to whether the 33 items are objects of cultural patrimony and whether the Field Museum has right of possession to the 33 items as issues of fact that the Review Committee might wish to assist in resolving. The White Mountain Apache Tribe's request for a recommendation as to whether the Field Museum's compromise provisions fully comply with statutory and regulatory requirements appeared to be beyond the Review Committee's purview.

On March 24, 2006, the Review Committee's Designated Federal Officer requested additional information from the White Mountain Apache Tribe and the Field Museum for consideration by the Review Committee prior to determining if the matter should be considered by the Review Committee. The Review Committee Chair and the Designated Federal Officer decided jointly to place discussion of the matter on the agenda of the Review Committee's next meeting.

At its May 30-31, 2006 meeting, the Review Committee considered the documents submitted by the White Mountain Apache Tribe and the Field Museum. The Review Committee recognized the possibility of a dispute, but was hopeful that the parties would come to a positive resolution. At the Review Committee's request, the Designated Federal Officer informed the White Mountain Apache Tribe and the Field Museum of the Review Committee's recommendations and asked that the parties notify him if they had not resolved the matter by August 1, 2006.

On August 4, 2006, the White Mountain Apache Tribe informed the Review Committee's Designated Federal Officer that the matter regarding repatriation of the 33 items had not been resolved.

On September 15, 2006, the Review Committee Chair and the Designated Federal Officer decided jointly that it was appropriate for the Review Committee to assist in the resolution of the dispute regarding whether the 33 items are objects of cultural patrimony and whether the Field Museum has right of possession of the 33 items. The White Mountain Apache Tribe and the Field Museum were notified that the matter would be considered by the Review Committee at its next meeting.

Under Section 8 of NAGPRA [25 U.S.C. 3006 (c)], the Review Committee has the responsibility: (1) to facilitate the resolution of any dispute among Indian tribes, Native Hawaiian organizations, or lineal descendants and Federal agencies or museums relating to the return of NAGPRA cultural items including convening the parties to the dispute if deemed desirable; (2) to monitor the inventory and identification process conducted under Section 5 and 6 of NAGPRA to ensure a fair, objective consideration and assessment of all available relevant information and evidence; and (3) upon the request of any affected party, review and make findings related to the identity or cultural affiliation of cultural items, or the return of such items. The issues considered by the Review Committee in this dispute between the White Mountain Apache Tribe and the Field Museum are within the responsibilities assigned to the committee under NAGPRA. The Review Committee has the authority to review and make findings related to the identity of the 33 items as well as the issue of right of possession, as it relates to the return of such items.

FINDINGS:

On November 3-4, 2006, the Review Committee considered the dispute as presented by representatives of the White Mountain Apache Tribe and the Field Museum and made the following findings:

(1) The identification of the 33 items as sacred objects and their cultural affiliation with the White Mountain Apache Tribe are not in dispute.

(2) The White Mountain Apache Tribe has asserted that these items are objects of cultural patrimony and the Field Museum has asserted that they are not objects of cultural patrimony.

(3) An object of cultural patrimony is defined as “an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group” [25 U.S.C. 3001 (3)(D)].

(4) There is conflicting evidence regarding whether the 33 items are of ongoing historical, traditional, or cultural importance to the White Mountain Apache Tribe. The Field Museum argued that, while the requested items have ongoing historical, traditional, or cultural importance, the items themselves are not “central” to the culture. To substantiate their position that the claimed objects are not of “central importance,” the Field Museum offers the following arguments: (a) that no controversy or confrontation occurred at the time of sale; (b) that the masks are not named or recognized individually; (c) that many masks are held in museums and private collections; and (d) that many masks are sold and there have been no previous public complaints by the tribe. The White Mountain Apache Tribe's position on “central importance” is that the 33 items are needed to channel the supernatural powers that serve to promote the general well-being and survival of the tribe. On this matter, the Review Committee placed considerable weight on the testimony of the traditional religious leaders who said that objects are of central importance. The Review Committee recognized that there is a commercial market of masks that have not been ritually treated and that there have been a few instances in which ritually treated objects have been sold. Violations to rules occur among all societies, and the White Mountain Apache are apparently no exception.

(5) There is conflicting evidence regarding whether the White Mountain Apache Tribe considered the 33 items to be inalienable by individuals in 1901 and 1903. The Field Museum cited ethnographic accounts by Grenville Goodwin indicating that such items were individual property. The White Mountain Apache Tribe presented testimony from present-day elders and from an anthropologist indicating that such items could not legitimately be sold by individuals. Testimony from the White Mountain Apache Tribe indicated that the present-day elders acquired their information from individuals who were alive at the time the objects were collected and who were in a position to know the cultural norms at that time. They also presented evidence indicating plausible reasons why Dr. Goodwin's information from that period may have been incorrect. The Review Committee found the arguments by the White Mountain Apache Tribe to be persuasive.

(6) Based on the abovementioned information, the Review Committee finds that the 33 items are consistent with the definition of object of cultural patrimony.

(7) The Field Museum has asserted that it has right of possession to the 33 items, based on evidence that these items were purchased by an agent of the museum from individual members of the tribe. These purchases were made in the open and with the full knowledge of the White Mountain Apache Tribe. The Field Museum asserted that there is no evidence that the purchases were contested at the time, or that any sellers were challenged or punished.

(8) Right of possession is defined in part as “possession obtained with the voluntary consent of an individual or group that had authority of alienation.”

(9) There is no dispute that the Field Museum purchased these items from individuals, and no evidence was presented to indicate that these purchases were approved by the White Mountain Apache Tribe.

(10) Evidence presented by the White Mountain Apache Tribe and the Field Museum indicated that the 33 items were sold to the museum by individuals who did not have the authority of alienation. Items of cultural patrimony can only be alienated with the voluntary consent of the tribe. The Field Museum did not present evidence indicating that the sales were made with the voluntary consent of the tribe. Therefore, the Review Committee finds that the Field Museum has not presented evidence sufficient to overcome the inference established by the White Mountain Apache Tribe that the museum does not have a right of possession to the 33 items.

RECOMMENDATIONS:

Based on these findings, the Review Committee recommends that:

(1) The Field Museum consider the oral testimony and written evidence provided by the White Mountain Apache Tribe, and change its determination of the 33 items to recognize their status as objects of cultural patrimony.

(2)The Field Museum acknowledge that it lacks right of possession to the 33 items.

The National Park Service publishes this notice as part of its administrative and staff support for the Review Committee. The findings and recommendations are those of the Review Committee and do not necessarily represent the views of the Secretary of the Interior. Neither the Secretary of the Interior nor the National Park Service has taken a position on these matters.

Dated: December 1, 2006.

Rosita Worl,

Chair, Native American Graves Protection and Repatriation Review Committee.