[Federal Register Volume 72, Number 25 (Wednesday, February 7, 2007)]
[Notices]
[Pages 5738-5740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1964]


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DEPARTMENT OF THE INTERIOR

National Park Service


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.

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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

[[Page 5739]]

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

[[Page 5740]]

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.
[FR Doc. E7-1964 Filed 2-6-07; 8:45 am]
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