Repatriating Native American Remains

Disputes over the disposition of sensitive collections shadow Peabody Museum

Photo of Jane Pickering
Jane PickeringPhotograph by Stephanie Mitchell/HPAC

When Joseph P. “Joe” Gone ’92 was a student at Harvard, the University was inventorying the thousands of Native American remains stored at the Peabody Museum of Archaeology and Ethnology. The Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990, required institutions to catalogue their collections as a first step toward returning human remains, burial objects, and sacred items to the tribes from which they were taken.

When Gone returned to Harvard as a professor of anthropology and global health and social medicine around 30 years later, this repatriation process was still under way—and Harvard has yet to return two-thirds of the individuals in its original collection.

“When I arrived here as a faculty member…and entered my faculty office over in the Tozzer Anthropology building, I was acutely aware that within that broader complex is a storage unit that contains thousands of Indian remains,” said Gone, who is an enrolled member of the Aaniiih-Gros Ventre tribal nation of Montana. “That has an effect on my own psychology—not to mention, in general, the psychology of indigenous people….”

Used for research on the history of disease, nutrition, and population movement, the Peabody’s collection of Native American remains is one of the largest in the nation. Harvard faculty members involved with NAGPRA say the collection’s exceptional nature must be considered when evaluating the museum’s progress on repatriation.

The Association on American Indian Affairs—a nonprofit founded in 1922 to protect Native American sovereignty and culture—revived scrutiny over Harvard’s repatriation practices this winter, after President Lawrence S. Bacow announced that the Peabody had discovered 15 possibly enslaved individuals of African descent in its collection. In a statement, Bacow apologized for Harvard’s “collection practices that placed the academic enterprise above respect for the dead and human decency,” briefly invoking the University’s collection of Native American remains.

Peabody director Jane Pickering expanded on that by writing, “We take the occasion of this current discovery and this wide-ranging institutional apology, to make a specific and formal apology for the practices that led to the Peabody’s large collection of Native-American human remains and funerary objects.”

In a February letter to Bacow, the Association argued that the University has failed to back up its apology with concrete action. The public letter claimed the Peabody has historically breached the letter of NAGPRA—and continues to breach its spirit.

Toward Ethical Stewardship

When enacted, NAGPRA gave institutions five years to inventory their collections. This process required consultation with tribes: institutions were expected to use preliminary information attached to remains and funerary objects—such as geographic origin—to consult with all tribes to whom they potentially belonged, and then to use a preponderance of the evidence to establish cultural affiliation before physically returning the remains and funerary items to the affiliated tribe. If there was no evidence that enabled consultation or affiliation, remains and funerary objects were deemed culturally unidentifiable.

In its recent letter, the Association criticized Harvard for submitting its inventory without completing tribal consultations—even after it received a five-year extension from the federal government to do so, until 2000. According to the Association’s chief executive and attorney Shannon O’Loughlin, a citizen of the Choctaw Nation of Oklahoma, the Peabody failed to confer with tribes on thousands of remains that had the geographical information necessary to identify potential stakeholders. Instead of trying to establish affiliation, the Peabody, she contends, simply placed these remains on a “culturally unidentifiable” list.

The Association noted that, according to a public inventory, 6,372 of the 6,586 nominally “unidentifiable” individuals remaining in the Peabody’s collection are of known geographical origin. “96.75% of the Ancestors in your collections have information that will absolutely allow Tribal consultation and repatriation,” the letter read. “Instead, the Harvard Peabody has labeled these Ancestors as ‘culturally unidentifiable,’ shifting the burden to Tribes to prove affiliation….We consider this an abuse of process, and potentially hundreds of instances of failure to comply under the law.”

Philip J. Deloria
Photograph by Rose Lincoln/HPAC

In a March reply to the Association, Pickering and Philip J. Deloria—Harvard’s first full professor of Native American history (profiled in “Native Modern,” January-February 2019, page 50) and the chair of the museum’s NAGPRA Advisory Committee—explained that the 1995 federal inventory deadline was too tight to finish consultations. “The Peabody, along with other museums, expressed concern to the [Department of the Interior]” that complying would mean that “human remains would need to be reported as culturally unidentifiable,” they wrote. “The Museum did not then and does not now intend that those preliminary determinations be final.”

In an interview, Deloria—an enrolled member of the Standing Rock Sioux Tribe—said that “What happened—not just at Harvard but at many, many places—was that the culturally unidentified category became something of a placeholder for things which were yet to be determined. The assumption was further consultation would happen.” Deloria clarified that, at the Peabody, this further consultation must be initiated by tribes; the museum does not intend to proactively reassess remains reported as culturally unidentifiable. O’Loughlin called that unjust.

Resource Realities

Kathleen Fine-Dare, an emeritus professor of anthropology at Fort Lewis College, said the law does not require institutions to proactively reanalyze such remains, “But that doesn’t mean you shouldn’t do it,” she said. “Back then, nobody knew what they were doing. Now we know better, and a good-faith effort would be to say, ‘The information we submitted before was incomplete.’”

But Deloria said being proactive is a luxury the Peabody can’t afford.“It’s hard to say we’re going to dive into our collections and do some kind of proactive work around this—we’re basically trying to deal with the requests that come in,” he said. Proactivity “would mean us needing 20 more people.”

Fulfilling consultation requests is laborious, he stressed, and geographic origin does not offer a straight path toward affiliation, according to the Peabody’s letter: “Cultural affiliation must be established using multiple types of evidence: kinship, biological, archaeological, anthropological, linguistic, folklore, oral tradition, historical, or expert opinion. These lines of evidence…are critical to affiliation,” he and Pickering wrote. “When consulting on unidentified human remains, institutions are required to reach out to all tribes who may have a relationship with the individuals (which may supersede present-day geography),” they noted. “In some cases that can involve more than 50 tribal nations at a time.”

“Anyone who suggests that NAGPRA is easy is at best being disingenuous,” Pickering said. “It is fair to say we have been reactive…I wouldn’t disagree with that. But it’s because we have one of the largest collections subject to the Act.”

Gone noted that “It took decades—maybe centuries—to accrue all that stuff, and it’s not surprising that it takes a long time to do due diligence.” He said he’s confident work is proceeding “as expediently as is possible under current resource constraints,” though “there’s no question” that it could proceed more quickly with more resources.

Pickering said the Peabody has the equivalent of five or six full-time staff members working on NAGPRA—a figure “certainly in line with other institutions.” But in proportion to the size of its collections, said chair of the Peabody Faculty Executive Committee Matthew J. Liebmann—also a professor of archaeology and a NAGPRA Committee member—the museum employs a “remarkably small” staff. “It takes a lot of work in order to do this work right.”

Deloria said those involved with repatriation would “love to see” more personnel devoted to the task, but staffing comes down to “how Harvard manages its budgets.” Outside NAGPRA experts are skeptical that Harvard lacks sufficient resources to repatriate at a faster pace. “Nobody believes it,” Fine-Dare said. “Harvard doesn’t have time, Harvard doesn’t have money?”

Harvard’s rate of repatriation—34 percent complete—isn’t far below the national average of around 40 percent. “But the national average is awful” says Chip Colwell—an anthropologist who has worked on repatriation at the Denver Museum of Nature and Science. Colwell, the editor-in-chief of the anthropology magazine SAPIENS, explains that “Not enough museum leaders have seen repatriation as a moral emergency.” By comparison, Yale’s Peabody Museum has repatriated 40 percent of the approximately 1,100 individuals in its original collection while UCLA—with an original collection of just 124 individuals—is 99 percent finished. “We need to work faster,” Liebmann said. “I think many of us on the NAGPRA Committee feel like we need to make better progress.”

O’Loughlin and Colleen Medicine—the Association’s program director and a citizen of the Sault Ste. Marie Tribe of Chippewa Indians—said they would be satisfied if Harvard returned all Native American remains and objects in its collection within a decade. But Deloria said NAGPRA’s complexity made it “unrealistic” to project an endpoint: “It’s not the right thing to do to set a date.”

Pickering also declined to do so. “In one sense, repatriation is part of ethical stewardship, and so therefore it’s never done,” she said. Still, she emphasized that the Peabody does eventually intend to cede ownership over all the Native American remains in its collection by either repatriation or an alternate process specified by the law called disposition, through which unaffiliated tribes can take ownership of culturally unidentified remains. But Harvard’s practice until recently has been to withhold grave goods found with unidentified remains when returning them through disposition. That angered many tribes.

Modifying Museum Policies

O’Loughlin said descendent communities too often suffered under what she called an unethical, albeit legal, policy because Harvard requires standards of evidence to establish affiliation with human remains that the Association characterizes as unreasonably high, forcing many tribes to seek their return through disposition.

“It may be that the Peabody is somewhat conservative as an institution in that they send tribes back or ask tribes to return with more information more often than we ought—or that that’s been our history,” Deloria said. Still, he noted the Peabody isn’t the only institution that asks tribes to deepen their cases for affiliation—and it’s a process that can actually be “quite generative and quite productive.” But he acknowledged that Harvard’s past refusal to return funerary items in disposition “was definitely a mistake.” When the NAGPRA Advisory Committee formed in May 2020, allowing the return of associated funerary objects with culturally unidentified remains was the “single most important” item on its agenda. The Corporation approved the revision in early February.

Medicine said the change was overdue. “I’ve worked with over a dozen institutions, and Harvard was the only one that refused to return funerary objects.” Colwell noted that “It’s the museums that have not returned funerary objects [with unaffiliated remains] that have been in the minority.” He said the holdouts show a resistance to embracing “the underlying ethical issues.”

The Association’s letter also demanded that Harvard cease research on Native American remains and items until it has received tribal consent.

In their reply, Deloria and Pickering wrote that the Peabody does “not allow destructive research on culturally affiliated human remains or items without permission from the tribe.” But what of culturally unidentifiable remains? “If you’re saying that these Ancestors are all unidentifiable and no one’s connected to them,” said O’Loughlin, “you’re likely allowing research on them.”

Deloria and Pickering’s letter did not commit to a research moratorium on unidentifiable remains, but did state that the museum is making policy changes. Liebmann explained that prior policy allowed researchers access to unidentifiable remains unless there was “a specific request from a tribe to require special permission.” Similarly, tribes with whom the Peabody has not yet had an active consultation—though the museum has sent out hundreds of pending invitations during the past 30 years, Pickering noted—must request removal of photographs of funerary and sacred objects from the museum’s public online database. But since September, Liebmann said, the Peabody Executive Committee has been reviewing such policies so that they take “into account the concerns of communities and put them on par with research and scholarship.”

When the Peabody was established in the late nineteenth century, Native American populations were dangerously small, and collectors “paternalistically” sought to “document ways of life that they saw as disappearing,” Liebmann explained. “In many cases,” their collections “provided the basis of generations of scholarship, but it was not done with the consent of indigenous peoples,” he continued. “And today we can see the damage that was done with that attitude.”

Harvard is currently surveying all 22,000 or more sets of human remains in the Peabody, the Medical School’s Warren Anatomical Museum, and its other collections, particularly those of people who were marginalized or enslaved in the United States and abroad. A committee chaired by professor of the history of science and of African and African American studies Evelynn Hammonds will honor and memorialize the people in the University’s collections. “We have a responsibility,” she said, “to make visible what happened.”

Published in the print edition of the September-October 2021 issue (Volume 124, Number 1), under the  headline “The Spirit of the Law.”

Read more articles by Juliet Isselbacher

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