Beyond NAGPRA/Not NAGPRA

[NOTE: This paper was published in the special issue “Indigenous Collections: Belongings, Decolonization, Contextualization” of Collections: A Journal for Museum and Archives Professionals, 2022, Vol. 18(1):8-17. We’ve reproduced the pre-press version here with pagination for those who do not have access to SAGE publications. Please cite as Wheeler, Ryan, Jaime Arsenault, and Marla Taylor. “Beyond NAGPRA/Not NAGPRA.” Collections 18, no. 1 (March 2022): 8–17. https://doi.org/10.1177/15501906211072916.%5D

Abstract

Institutions have been slow to respond to calls from Indigenous nations, organizations, and scholars to require free, prior, and informed consent before authorizing use of their cultural heritage materials in publications, exhibition, and research. In the United States, the Native American Graves Protection and Repatriation Act of 1990 fundamentally changed the relationship between museums, archaeologists, and Indigenous nations, requiring institutions to inventory their collections and consult with descendant communities on repatriation of specific Indigenous collections. In response, institutions and their personnel have come to view Indigenous collections as those subject to NAGPRA and those that are not—NAGPRA/Not NAGPRA. Many Indigenous nations, however, do not accept this demarcation, resulting in continued frustration and trauma for those descendant communities. This case study follows the evolving relationship between the White Earth Band of the Minnesota Chippewa Tribe and the Robert S. Peabody Institute of Archaeology. Beginning with repatriation, the relationship has expanded to consider how the museum and Indigenous nation can collaborate on the care and curation of cultural heritage materials that remain at the Peabody Institute. Most recently, White Earth and the Peabody have executed an MOU that governs how the museum will handle new acquisitions, found-in-collections materials, and donor offers. The relationship with the White Earth also has influenced how the Peabody Institute approaches its holdings of Indigenous cultural heritage materials more broadly, blurring the line between NAGPRA and Not NAGPRA collections. The Peabody Institute is working to revise its collections policy to require free, prior, and informed consent prior to use of Indigenous cultural heritage materials in publications, exhibitions, and research.

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Introduction

This case study is authored by Ryan Wheeler and Marla Taylor, who acknowledge that they are settlers of European descent in the unceded territories of many Indigenous nations in New Hampshire and Massachusetts, USA, including the Wabanaki Confederacy and the Wampanoag nations, and Jaime Arsenault, the Tribal Historic Preservation Officer (THPO) for the White Earth Band of the Minnesota Chippewa Tribe (White Earth). Wheeler and Taylor are employees of the Robert S. Peabody Institute of Archaeology (the Peabody), an archaeology museum that is part of Phillips Academy, a college preparatory school located in Andover, Massachusetts USA. Founded in 1901, the Peabody has a lot in common with other twentieth century museums in the United States, including amassing Indigenous collections from diverse areas with little or no consent from descendant communities. The Peabody currently holds nearly 600,000 objects of Indigenous material culture, primarily from the Arctic and Canada; the northeastern, southeastern, and southwestern United States, and Mexico and Peru, as well as photographs and archival materials.

The Native American Graves Protection and Repatriation Act (NAGPRA) was passed as federal law in 1990 and required that museums and federal agencies inventory their holdings for ancestral remains and funerary belongings, provide these inventories to descendant Indigenous communities, and consult with those communities on cultural affiliation and repatriation. NAGPRA has elements of property law and civil rights legislation, providing an opportunity for Indigenous nations to reclaim stolen ancestors and funerary belongings. NAGPRA fundamentally changed the relationship between Indigenous nations, archaeologists, and museums, creating an environment where representatives of each group were in regular contact with one another. Often this contact led to other programs and collaborations beyond NAGPRA. For examples, Nash (2021; also see Moore 2010) has recently revisited the concept of “propatriation,” collaborative undertakings that go beyond the legal requirements of the Native American Graves Protection and Repatriation Act (NAGPRA) or moral imperatives to return Indigenous cultural heritage to groups outside the United States. NAGPRA compliance, however, has been slowed by a variety of factors, including institutional reliance on archaeological and biological lines of evidence, even in the face of compelling oral history evidence or expert opinion supplied by Indigenous nations. At the time of this writing, over 100,000 ancestors remain in museum collections with little or no path to repatriation (Nash and Colwell 2020).

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Between 2013 and 2015, the Peabody developed a strategic plan that built on an earlier commitment to NAGPRA, prioritizing decolonial principles in all aspects of museum operations (Robert S. Peabody Institute of Archaeology 2015). With decolonization as a guiding principle, the plan acknowledged the harm caused by archaeological excavations and sought to shift the balance of power, giving Indigenous nations a greater voice in how their material culture is handled and interpreted. We argue that museums and institutions holding Indigenous cultural heritage must go beyond collaborative programming to instill change at the policy and procedure level. Work on NAGPRA compliance provides an opportunity to develop and implement those policy changes.

The Peabody Institute and the White Earth Band of the Minnesota Chippewa Tribe have collaborated to blur what we have been calling the NAGPRA/Not NAGPRA dichotomy. Though we have encountered other museums in the United States where staff are interested in instituting such changes, informal conversations have found few examples where official policies governing how Indigenous collections are accessed for exhibit, research, photography, or other purposes specifically require the free, prior, and informed consent of descendant communities. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on 13 September 2007. Part 2 of Article 11 specifically states:

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs (UN General Assembly 2007).

Article 12 deals with the rights of Indigenous people to seek repatriation of ancestors and ceremonial objects. Revision of the Peabody’s collection policy specifically aligns with Articles 11 and 12 of UNDRIP, both in the way that NAGPRA is implemented, but also in going beyond NAGPRA compliance to insure the rights of Indigenous people regarding their tangible and intangible cultural heritage.

NAGPRA/Not NAGPRA

Co-authors Wheeler and Taylor, in their respective roles as director and curator of col- lections at the Peabody Institute, began using the phrase NAGPRA/Not NAGPRA sometime in the last few years to describe their own approach to Indigenous heritage collections. This articulation of our own institution’s approach to repatriation occurred in 2017 to 2018 when we first began to draft a broad repatriation policy, based on our existing practice. Consultation with Indigenous nations, especially White Earth, as well as the Osage Nation of Oklahoma, the Wabanaki Repatriation Confederacy of

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Figure 1. Tara Mason, beadwork artist and member, White Earth Band, examines Anishnaabe clothing at the Peabody Institute as co-authors Marla Taylor and Ryan Wheeler look on during a consultation visit, January 2017.

Maine, Pueblos in the American Southwest, as well as engagement with other repatriation practitioners in the NAGPRA Community of Practice began to erode our commitment to this approach (Figure 1). Taylor concisely stated that she believed that many institutions, in response to the passage of NAGPRA, began to distinguish those collections that they felt were subject to NAGPRA from those that were not. By firmly drawing boundaries between NAGPRA and Not NAGPRA collections, institutions preserve pre-NAGPRA decision-making structures regarding how they can access and use Indigenous cultural heritage. This discernment, whether intentional or not, reflects the imbalance inherent in a law that sought to balance the interests of museums with the rights of Indigenous nations to reclaim their stolen ancestors and make decisions regarding other tangible and intangible cultural heritage, including images, archives, and songs. If there is any doubt about this, responses from museums and archaeologists to the Department of Interior’s proposed changes to the NAGPRA rules support our assertion (see Seidemann 2008).

Blurring the Lines

While uncommon, there are some excellent examples where organizations and institutions have blurred the lines between NAGPRA and Not NAGPRA collections. The First Archivists Circle (2007) developed and shared The Protocols for Native American

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Archival Materials. Like NAGPRA, consultation with descendant communities is at the core of The Protocols. The Protocols stress that consultation and shared decision making about archival collections are in line with accepted ethical archive practices. Between 2016 and 2018, the Peabody Institute incorporated many of the principles and practices advocated for in The Protocols. For example, we agreed that digitizing paper and photographic records was inappropriate without consultation and explicit approval from Indigenous nations, especially as many of the museum records dealt with excavations of ancestral remains. It was not until more recently that we formally incorporated these practices into our collections policies and procedures. It is unclear, however, how many institutions have formally implemented the recommendations within The Protocols, though there are good examples and case studies at the website of the Society of American Archivists (2021a, 2021b).

The University of Maine (2018, Orono) executed a Memorandum of Understanding with the Penobscot Nation. The MOU formalizes principles and practices regarding how the university manages and shares Penobscot cultural heritage at the Hudson Museum, the Fogler Library, the University of Maine Press, and the Anthropology Department. University of Maine history faculty member Darren Ranco and Jane Anderson of New York University developed the University of Maine MOU. Anderson’s work on attribution, Indigenous archives, intellectual property, and Traditional Knowledge labels is critically important and informs the case study presented here (Anderson 2018; Christen and Anderson 2019).

Case Study

White Earth is one of seven Anishinaabe reservations in Minnesota, created in 1867 by a treaty between the United States and the Mississippi Band of Chippewa Indians. Unlike many lands set aside for Indigenous nations in the United States, the White Earth Reservation had abundant natural resources, including timber. Meyer (1994), a historian of mixed Irish, German and Eastern Cherokee heritage, published The White Earth Tragedy, telling the story of how unscrupulous companies and individuals defrauded the Anishinaabe people of their property, land, and natural resources (Bloch et al. 2008). The dispossession of the White Earth Anishinaabe also set in motion the loss of significant material culture, as anthropologists and collectors forced Indigenous nation members to sell or gift items they possessed.

Robert S. Peabody and Warren K. Moorehead founded the Peabody Institute in 1901, originally called the Phillips Academy Department of Archaeology, at Robert’s high school alma mater. The museum became involved in the major undertakings of twentieth century archaeology, including sponsorship of Alfred V. Kidder’s 1915– 1929 excavations of Pecos Pueblo, investigations across the Northeast and Southeast, with personnel holding leadership roles in major anthropological and archaeological

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organizations. Curator Warren K. Moorehead was also involved with the Bureau of Indian Affairs (Fritz 1985). Through his association with the BIA, he investigated the fraud being committed against the Anishinaabe people at White Earth. While at White Earth Moorehead obtained a number of cultural heritage materials, ranging from photographs to sacred items to elements of Anishinaabe clothing (Bacon 2009; Moorehead 1914).

Personnel at the Peabody Institute embraced repatriation after the passage of NAGPRA in 1990, perhaps largely due to the commitment and vision of Leah Rosenmeier, who served in a variety of roles at the museum from 1993 to 2002 (Bradley 2018). Starting in 2013, the leadership of the Peabody Institute recognized the importance of repatriation work conducted under NAGPRA and the need for broader theoretical underpinnings that could inform all collections and educational endeavors (see Lonetree 2012). As part of their strategic planning process, Wheeler invited Arsenault to present to the institute’s advisory committee, following an earlier meeting in 2011. Coincidentally, Arsenault was assisting in the development of the White Earth’s Tribal Historic Preservation Office (THPO) repatriation program, and was actively searching for Indigenous cultural heritage that had originated at White Earth.

Warren K. Moorehead’s activities at White Earth in 1909 had led to the accession of a number of items, including glass plate photographs of his investigation, Anishanaabe clothing and bandolier bags, as well as pipes, a war flag, and birch bark scroll meeting the definition of cultural patrimony and sacred objects under the NAGPRA law and rules. Arsenault and other White Earth representatives aided in the repatriation of some of these Indigenous collections, and provided informal guidance on the care of the remaining materials (National Park Service 2016, 2017). For example, White Earth representatives asked that the museum not share the photographic images made by Moorehead without permission from the THPO.

Arsenault, serving as the White Earth’s Tribal Historic Preservation Officer, pro- posed in 2020 that the Peabody Institute enter into a more formal agreement regarding future acquisitions of Indigenous cultural heritage originating from the Indigenous nation. The agreement would cover offers of donations or sale made to the museum, or purchases of contemporary artwork from Indigenous nation members. Arsenault collaborated with Jane Anderson of NYU and provided a draft agreement document, and Wheeler, Taylor, and the Phillips Academy legal counsel made revisions and updates. A copy of the final document—ultimately called Memorandum of Understanding (MOU) between White Earth Band of the Minnesota Chippewa Tribe Historic Preservation Office and the Robert S. Peabody Institute of Archaeology—is available from the authors or the Peabody Institute. Major elements include:

  • The MOU addresses all tangible and intangible materials (photographs, field- recordings, maps, archaeological collections, films, field-notes, legal papers,

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artwork, biographical material, and like materials) that relate or may relate to White Earth. There are provisions for the tribe to aid the institution in making cultural identifications if the materials cannot be sourced to White Earth specifically.

  • The MOU specifies that it is part of Peabody Institute efforts to adhere to CARE Principles for Indigenous Data Governance (Global Indigenous Data Alliance 2019). Among other things, the CARE Principles recognize that current efforts to digitize and widely share scientific data often fail to involve descendant com- munities in these decisions.
  • There is a focus on communication between the Peabody Institute and White Earth, especially in cases where there are potential purchases or donations of cultural materials that originated from White Earth. This includes contemporary artwork, so that the White Earth THPO can track all White Earth cultural heritage. There are provisions for regular contact and exchange of information between the tribe and museum, and revisions to the MOU as needed.
  • The MOU specifies that the Peabody Institute will encourage potential donors and sellers to work directly with White Earth to transfer tangible and intangible cultural heritage materials to the tribe as the descendant community.
  • White Earth is the primary cultural authority over their cultural heritage materials in perpetuity. This includes provisions that the White Earth THPO must approve all requests to publish, research, disseminate, image, or exhibit said cultural heritage materials before the museum grants permission to the requestor.
  • The Peabody Institute and White Earth will collaborate to develop Traditional Knowledge (TK) labels for White Earth heritage materials held by the institution, formalizing some of the practices already in place (Local Contexts 2019).

Recommendations

Work with your institutional leadership to revise collections policies and procedures to center Indigenous voices. This should include policies that govern loans, exhibits, and research, updated to require descendant community approvals. At the Peabody Institute we have revised the documents that relate to loans and researcher access, making it clear that descendant communities must be involved at all stages of a project and that those communities must approve how Indigenous cultural heritage is used or exhibited.

Add Indigenous members to your museum leadership board or committee, and col- lections subcommittees. Members with particular geographic or cultural affiliation with collections that you hold will bring invaluable expertise.

If your institution is working on NAGPRA compliance or repatriation in general, consider having conversations with consulting tribes about MOUs that would vest

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cultural authority and decision making on collections with those descendant communities.

Develop and implement a Care-and-Trust Agreement with the descendant communities represented in the collection to dictate the care, access, handling, and housing of collections while in the physical control of the institution. An agreement like this should apply to all relevant material within the collection regardless of repatriation status. Update webpages to indicate that your institution is open to collaboration with Indigenous communities, especially if the collections you hold are geographically and culturally diverse.

Educate staff and board members to help build a broad base of support for your efforts. This can include readings and coursework, as well as informal conversations about decolonizing work at all levels of the institution.

Acknowledgments

We thank Rose Buchanan for her help in understanding ongoing work to implement the Protocols for Native American Archival Materials.

References

Anderson, Jane. 2018. “Negotiating Who Owns Penobscot Culture.” Anthropology Quarterly 91 (1): 265–302.

Bacon, Anabel. 2009. “Warren King Moorehead: The Peabody’s First Curator, a Champion of Native American Rights.” Andover Bulletin 102 (2): 22–3.

Bloch, Ruth, Valerie Matsumoto, Kathryn Norberg, Janice Reiff, and Mary Yeager. 2008. “In Memoriam: Melissa L. Meyer.” Accessed October 12, 2021. https://senate.universityof california.edu/_files/inmemoriam/html/melissameyer.html.

Bradley, James. 2018. “Negotiating NAGPRA: Rediscovering the Human Side of Science.” In Glory, Trouble, and Renaissance at the Robert S. Peabody Museum of Archaeology, edited by Malinda Stafford Blustain and Ryan Wheeler, 159–72. Lincoln: University of Nebraska Press.

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Christen, Kimberly, and Anderson, Jane. 2019. “Toward Slow Archives.” Archival Science 19 (2): 87–116.

First Archivists Circle. 2007. Protocols for Native American Archival Materials. Accessed July 1, 2021. https://www2.nau.edu/libnap-p/protocols.html.

Fritz, Henry, E. 1985. “The Last Hurrah of Christian Humanitarian Indian Reform: The Board of Indian Commissioners, 1909-1918.” Western Historical Quarterly 16 (2): 147–62.

Global Indigenous Data Alliance. 2019. “CARE Principles for Indigenous Data Governance.” Accessed July 1, 2021. https://www.gida-global.org/care.

Local Contexts. 2019. “Traditional Knowledge Labels.” Accessed July 1, 2021. https://localcontexts. org/labels/traditional-knowledge-labels/.

Lonetree, Amy. 2012. Decolonizing Museums: Representing Native America in National and Tribal Museums. Chapel Hill: University of North Carolina Press.

Meyer, Melissa, L. 1994. The White Earth Tragedy: Ethnicity and Dispossession at a Minnesota Anishinaabe Reservation, 1889–1920. Lincoln: University of Nebraska Press.

Moore, Emily. 2010. “Propatriation: Possibilities for Art after NAGPRA.” Museum Anthropology 33 (2): 125–36.

Moorehead, Warren, K. 1914. The American Indian in the United States: 1850-1914. Andover: Andover Press.

Nash, Stephen E. 2021. “How Museums Can Do More Than Just Repatriate Objects.” Accessed July 1, 2021. https://www.sapiens.org/column/curiosities/propatriation-nagpra/.

Nash, Stephen, E., and Chip Colwell. 2020. “NAGPRA at 30: The Effects of Repatriation.” Annual Review of Anthropology 49: 225–39.

National Park Service. 2016. “Notice of Intent to Repatriate Cultural Items: Robert S. Peabody Museum of Archaeology, Andover, MA.” Accessed July 1, 2021. https://www.federalregister. gov/documents/2016/04/29/2016-10070/notice-of-intent-to-repatriate-cultural-items-robert-s- peabody-museum-of-archaeology-andover-ma.

National Park Service. 2017. “Notice of Intent to Repatriate Cultural Items: Robert S. Peabody Museum of Archaeology, Phillips Academy, Andover, MA.” Accessed July 1, 2021. https://www.federalregister.gov/documents/2017/05/03/2017-08879/notice-of-intent-to- repatriate-cultural-items-robert-s-peabody-museum-of-archaeology-phillips.

Robert, S. Peabody Institute of Archaeology. 2015. “Strategic Plan, 2015–2020, Robert S. Peabody Institute of Archaeology.” Accessed October 12, 2021. https://www.andover.edu/ files/PeabodyPlan2015_2020.pdf.

Seidemann, Ryan. 2008. “Altered Meanings: The Department of the Interior’s Rewriting of the Native American Graves Protection and Repatriation Act to Regulate Culturally Unidentifiable Human Remains.” Accessed July 1, 2021. https://www.academia. edu/30027274/Altered_Meanings_The_Department_of_the_Interior_s_Rewriting_of_the_ Native_American_Graves_Protection_and_Repatriation_Act_to_Regulate_Culturally_ Unidentifiable_Human_Remains.

Society of American Archivists. 2021a. “Protocols for Native American Archival Materials: Information and Resources Page.” Accessed July 1, 2021. https://www2.archivists.org/ groups/native-american-archives-section/protocols-for-native-american-archival-materi- als-information-and-resources-page.

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Society of American Archivists. 2021b. “Access Policies for Native American Archival Materials- Case Studies.” Accessed July 1, 2021. https://www2.archivists.org/publications/epubs/ Native-American-Archival-Materials-Case-Studies.

UN General Assembly. 2007. “United Nations Declaration on the Rights of Indigenous Peoples: Resolution Adopted by the General Assembly, 2 October 2007, A/RES/61/295.” Accessed October 12, 2021. https://www.refworld.org/docid/471355a82.html.

University of Maine. 2018. “Memorandum of Understanding Between the Penobscot Nation and the University of Maine System, University of Maine (Orono).” Accessed July 1, 2021. https://umaine.edu/nativeamericanprograms/wp-content/uploads/sites/320/2018/05/ Penobscot-Nation-UMaine-MOU.pdf.

Author Biographies

Ryan Wheeler is the director of the Robert S. Peabody Institute of Archaeology, a museum at Phillips Academy, Andover MA. At the Peabody, he has advanced a strategic vision focused on collections, education, and repatriation. In 2017, Ryan co-founded the Journal of Archaeology & Education, the only academic journal devoted to the intersection of these two fields. Ryan lives with his family in Medford, MA.

Jaime Arsenault is the Tribal Historic Preservation Officer (THPO), Repatriation Representative, and Archives Manager for the White Earth Band of the Minnesota Chippewa Tribe. Ms. Arsenault has worked with Indigenous communities for over twenty years. Currently, she is a member of the Minnesota Historical Society Indian Advisory Committee and the Repatriation Working Group with the Association on American Indian Affairs (AAIA) and a member of the Smithsonian Institution’s National Museum of Natural History Repatriation Review Committee. She is a Community Intellectual Property Advisory Board Member for the Penobscot Nation and sits on both the Advisory Committee and the Collections Committee of the Peabody Institute of Archaeology. Ms. Arsenault also serves as a MuseDI Partner on decolonization practice for the Abbe Museum.

Marla Taylor is the curator of collections at the Robert S. Peabody Institute of Archaeology at Phillips Academy in Andover, MA. She has worked in all facets of collections management from cataloging to conservation to repatriation. Marla currently splits her time between leading an effort to conduct a full inventory of the collection and facilitating access to the Peabody’s collection for Indigenous nation partners, researchers, and educators.

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