Native American Nonprofit Accuses Harvard of Violating Federal Graves Protection and Repatriation Act

The Association on American Indian Affairs sent a letter to University President Lawrence S. Bacow in February alleging Harvard is in violation of the Native American Graves Protection and Repatriation Act and “has caused continuing physical, emotional and spiritual trauma to Native Nations and their citizens.”

The letter accused Harvard and the Peabody Museum of Archaeology and Ethnology of several legal and ethical missteps in its handling of Native American human remains and cultural objects, including failing to consult with Native American tribal nations when completing inventories of those collections, as NAGPRA mandates.

Congress passed NAGPRA in 1990 to require any institutions that receive federal funding to inventory the remains of Native American people and their funerary objects, in consultation with any tribes that have “a possible cultural or geographical affiliation,” to notify the public of the possession of the items, and to transfer the items to the tribes.

According to the letter, Harvard has not always consulted the tribes with possible affiliations to the human remains and cultural objects in the University's collections. Only around 3 percent of the remains in Harvard’s possession have no associated geographical information, the letter reads.

“That means 96.75% of the Ancestors in your collections have information that will absolutely allow Tribal consultation and repatriation to take place,” it reads.

AAIA chief executive and attorney Shannon O’Loughlin, who is a citizen of the Choctaw Nation of Oklahoma, said Harvard's lack of consultation with the tribes has allowed the University to classify the remains and objects in its collection as “culturally unidentifiable,” meaning that under NAGPRA, tribes wishing to claim those items must go through additional steps and may be required to submit evidence.

O’Loughlin also alleged that thanks to a NAGPRA provision, by failing to affiliate the remains and objects with a tribe, Harvard can choose to repatriate only human remains upon a tribe’s request, but not associated funerary and sacred objects.

“By their own failure to comply with NAGPRA, they have been allowed to even keep those funerary objects that should have been returned if they would have completed the inventories properly to begin with,” she said.

O’Loughlin said the organization decided to write the letter after Bacow announced in January that the Peabody Museum had found in its collections the remains of 15 individuals who may have been enslaved. Bacow apologized on behalf of Harvard and pledged to improve the University’s practices around the handling of human remains in its collections.

“Harvard is claiming to want to decolonize its collections,” O’Loughlin said. “And what it’s chosen to do is really to continue the colonization process — it’s chosen to continue the harm that the theft originally incurred and continue to carry it forward.”

The letter also includes a list of demands: that Harvard hire a Native American NAGPRA expert to develop a plan for affiliating remains and objects currently marked as “culturally unidentifiable;” that it repatriate funerary items it chose to keep when returning some human remains it classified as “culturally unidentifiable;” that it make public its process for evaluating NAGPRA claims; that it declare a research moratorium on Native American remains and objects in its collections; and that it remove a search tool from the Peabody Museum’s website that displayed photos of some Native American funerary objects.

In a written statement responding to the AAIA letter, Peabody Museum Director Jane Pickering wrote that “since 1990, the Museum has developed a comprehensive program to administer NAGPRA requests, and the Museum recognizes that the return of a human being to a tribal nation not only is required by the law but also is a moral act.”

“To treat all individuals with care and dignity takes time, respect, and sensitivity, and the Museum, and its NAGPRA Advisory Committee, welcomes engagement with AAIA and others in advancing this important work,” she added.

University spokesperson Jonathan L. Swain confirmed that Bacow had received the letter. AAIA Program Director Colleen R. Medicine said the Association had “received no official response from Harvard.”

Potential Penalties

The University’s alleged failure to consult with tribes during its inventory process, which it completed in 2000, could incur civil penalties, according to O’Loughlin.

“If you think about almost 7,000 ancestors that they failed to consult about, depending on how the Secretary of Interior wanted to count that as civil penalties, each one of those could be counted as a potential civil penalty violation, and charged a fine which is then compounded every day that that hasn’t happened,” she said.

Robert J. Miller, a law professor at Arizona State University specializing in Federal Indian Law and a citizen of the Eastern Shawnee tribe of Oklahoma, said he thought the letter might signal an impending lawsuit.

“It looks like a demand letter before the filing of a lawsuit is how I would take it,” he said. “I wrote some of those, I responded to some of them.”

O’Loughlin declined to comment on the possibility of AAIA suing the University.

Keanu V. Gorman ’22, a co-president of Natives at Harvard College and a citizen of the Navajo Nation, said Harvard’s handling of Native American remains and objects has implications beyond the law itself.

They said the existence of the search tool, while legal, violates some tribes’ spiritual practices, which is why their own tribe has worked to repatriate objects displayed in museums.

“As a part of our culture, we wanted those items repatriated, because they weren’t supposed to be even viewed outside of any ceremonial context,” Gorman said. “It could mean very detrimental effects, spiritually.”

‘Just the Baseline’

Gorman said that consulting more actively with Native American tribes could help Harvard better understand the legal and moral implications of holding Native American remains and objects in its collections.

“I hate the excuse that a lot of museums and museum staff make, in which they say, ‘This can’t be identified to a specific culture,’ when in reality a lot of these cultures can identify those items themselves,” they said.

Natives at Harvard College co-president Anna Kate E. Cannon ’21, a citizen of the Choctaw Nation of Oklahoma, said Harvard’s resources and the time since it completed its inventory should have allowed the University to consult tribal nations more thoroughly.

“You’ve had so many years and so many funds, dedicated to literally just following the law and working with Native communities to give them back what is rightfully theirs,” said Cannon, a former Crimson Magazine editor. “And you’re just not doing it.”

“There’s a joke — at what point does it become archaeology and not grave robbing? And my opinion is that it is always grave robbing,” she added.

Although AAIA has been planning an effort to pressure institutions to correct alleged NAGPRA violations for several years, O’Loughlin said, the association was prompted to write to Bacow because of how briefly Harvard's president mentioned NAGPRA in his letter announcing the discovery of the remains of potentially enslaved people in the Peabody’s collections.

In a January email to University affiliates, Bacow had written that the efforts of a new steering committee on human remains in the University collections would “be informed by our existing efforts to care for one of the largest collections of American Indian remains in the country, as well as our implementation of the Native American Graves Protection and Repatriation Act.”

AAIA will send similar requests for NAGPRA compliance to other institutions in coming weeks, O’Loughlin said, adding that a thorough reexamination of the requested collections could be beneficial to the institutions too.

“When institutions do work with Native nations for repatriation purposes, they finally discover what it is they’ve had in their collections all along,” she said. “That communication, that consultation that Harvard has not done, really allows for education to occur — it allows the institution to actually fulfill its mission of educating the public about that culture.”

For Harvard, Cannon said she believes “compliance with NAGPRA is literally just the baseline.”

Through “active collaboration” with Native American tribal nations, she said, the University should investigate how it can more responsibly represent the items in its collections.

“How can you display things from our past, our present, and our future while still being respectful, and in ways that present us not as figures of the past, but as people who are still here, and still persevere, and still have vibrant, thriving cultures?”

—Staff writer Oliver L. Riskin-Kutz can be reached at oliver.riskin-kutz@thecrimson.com. Follow him on Twitter @OLRiskinKutz.