On May 15, 2008, I appeared before the Review Committee on behalf of a client to request a recommendation for the disposition (transfer of control) of human remains representing a minimum two Native American culturally unidentifiable individuals to the Cheyenne-Arapaho Tribes. The museum I represented consulted with 56 Indian tribes that have traditional territory claims in Colorado, Kansas, and Illinois. The Committee complemented us on the extensive consultation and on how well we negotiated two competing claims for repatriation. But then the Committee began to question if the remains were Native American. We presented Prima Facie evidence, which included associated funerary objects, the collecting history of the museum, the scope of collection of the donors, and the donors' statements. There was no evidence to indicate that they are not Native American.
The definition of Native American as it is defined in the Act:
Of, or relating to, a tribe, people, or culture that is indigenous to the United States. [25 USC 3001 (9)] Of, or relating to, a tribe, people, or culture indigenous to the United States, including Alaska and Hawaii. [43 CFR 10.2 (d)]

During previous Review Committee meetings other museums seeking recommendations for disposition have presented evidence from catalog records that remains could be those of an African American or Hispanic. And the Committee determined that they were not Native American in some cases and were Native American in other cases.
Despite the fact that my client had no notations in the records to indicate that the remains of the two individuals were anyone but Native American, the Committee was unanimous in its opinion that there was not sufficient evidence to determine that they are Native American and therefore are not covered by NAGPRA.
This is a significant departure from my previous encounters on behalf of clients in front of the Review Committee and from those that I have observed over the years. The Committee seems to be seeking a level of proof for making a determination that remains are Native American. But I don't know what level. Was it prima facie evidence, which is used in making cultural affiliation determinations? Prima facie evidence is evidence that until its effect is overcome by other evidence, will suffice as proof of fact in issue. Was it preponderance of the evidence, which is a feather weight more than 50% that the Committee was looking for? This level of proof is also used when making cultural affiliation determinations and when there is a dispute. Was it clear and convincing evidence that the Committee is seeking? This is the level used in civil cases. An attorney I consulted thought the Committee was using beyond a reasonable doubt, which is the level of proof used in criminal cases. Is this the appropriate level of proof to use for making a determination that human remains are Native American?
During the public comment period on May 16, 2008, I posed the following questions to the Review Committee. The Chairwoman, Dr. Rosita Worl, instructed the Designated Federal Officer to respond in writing. I have not yet received that response. But, I pose these questions to you for thought and comment:
What level of proof does the Committee use to determine if human remains are Native American? Is it the same level used for making cultural affiliation determinations?
As I previously stated, in my client's case the Committee did not use prima facie evidence. If it was some reasonable evidence that the Committee was looking for, that level of proof would have been met. Was it preponderance of the evidence? Was there a feather-weight more than 50% that the remains were those of Native Americans? With no evidence to the contrary I think there was a preponderance of evidence in my client's case. Was the Review Committee looking for clear and convincing evidence, the level of proof used in civil cases? Was it beyond a reasonable doubt, the level of proof used in criminal cases? Why did they raise this question at all?
What types of evidence does the Review Committee consider when making a Native American determination? Are they the same as for making cultural affiliation determinations? Is one type of evidence weighted more heavily than another?
In my client's case, the Committee seemed to be looking for biological evidence. Sometimes biological evidence will not exist, for example when an individual is adopted into a tribe from a non-biologically Native American population.
Does the Committee consider new oral tradition evidence? For example, what if you are told that the spirits of these individuals are guiding the tribe in their efforts?
Is the Committee concerned that it is establishing a precedent that may encourage some museums to make determinations without input from the Committee that similarly documented human remains are not Native American and therefore not covered by NAGPRA?
My client and the Cheyenne-Arapaho Tribe immediately after the meeting agreed in principle to move forward with physical transfer and reburial. During the meeting one Committee member told the museum that it was getting a pass on NAGPRA. His intention was to say the transfer could go forward outside the NAGPRA process. But what if the museum preferred to continue to curate the remains?
One question I did not pose to the Committee that I would like to pose to you is - What does this mean for the future of NAGPRA?

 

 

The Denver Art Museum names Eric Paddock as its new Curator of Photograph and Media Arts.  Paddock was previously Curator of Photography and Film at the Colorado Historical Society 

 

The Buffalo Bill Historical Center has selected Beverly Perkins as its new Conservator.  She was previously the Western Field Service Officer for the Balboa Art Conservation Center in San Diego.

 

The Colorado Historical Society announced that Governor Bill Ritter appointed Edward C. Nichols as State Historic Preservation Officer (SHPO) for the state of Colorado.  Nichols is the President and CEO of the Colorado Historical Society.