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New York Times writer misrepresents NAGPRA

Errors raise concerns among museum and federal officials

WASHINGTON - Museum and federal officials are taking Edward Rothstein, a longtime cultural critic and well-respected writer at The New York Times, to task. They say he made several egregious errors in his recent writings regarding the Native American Graves Protection and Repatriation Act and Indian representations in museums.

In a column by Rothstein published May 27 in the newspaper, titled ''Antiquities, the World Is Your Homeland,'' in which he argues that the ''cultural property movement'' is ''illicit,'' the writer made the following assertion about NAGPRA:

''In the United States ... the 1990 Native American Graves Protection and Repatriation Act required every museum getting public funds to survey its collections; identify Indian remains and funerary, sacred and other objects; and consult with Indian tribes and 'repatriate' the artifacts if requested. Such objects may have been legitimately purchased a century ago from the tribes or have no issue clouding their provenance, but claims of ordinary property give way before claims of cultural property. The grievous sins of the past are now being repaid with a vengeance. And the risks of repatriation and the requirements of tribal consultation have led to promotional, uninformative and self-indulgent themes in exhibitions about American Indians.''

Sherry Hutt, the national NAGPRA program manager, said Rothstein's interpretation is wrong. She is well versed in the 1990 law, which created a legal process for federal agencies and institutions that receive federal funding to return American Indian human remains and cultural items to their respective tribes or lineal descendants.

''NAGPRA does provide a process to resolve long-standing claims of Native Americans to the human remains of their ancestors and to certain cultural items, but it expressly does not require a museum to give up something that was lawfully acquired in the first instance,'' Hutt said. ''The law indicates that if the item left the tribe with the voluntary consent of an individual or group that had the authority of alienation, then the museum can overcome a claim by asserting its right of possession.''

She also said Rothstein's misinterpretations did not end there. He went on to write:

''The idea of cultural property ... led to the Army Corps of Engineers' bulldozing an archaeological site in Washington state in 1998 that had yielded a roughly 9,200-year-old skeleton, known as Kennewick Man, the oldest ever found in North America. Without any evidence, local Indian tribes claimed the skeleton was their cultural property - the bones of an ancestor - and they successfully prevented a complete scientific examination. The bulldozing was apparently a new form of protection: philistinism triumphing in the name of enlightened ideas.''

She noted, ''As to the Army Corps bulldozing a site: The Army Corps spent $1.2 million on science on the remains and gave a permit for scientific excavation at the site to Dr. James Chatters, upon his request, all prior to covering the site. Scientists now control a copy of the skeleton for their indefinite examination.''

Her inference is that Rothstein is exaggerating his claims to perhaps make readers believe Indians were successful in stopping study on Kennewick Man altogether.

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Patty Gerstenblith, a legal scholar at DePaul University specializing in cultural heritage law, noted that the NAGPRA statute is carefully crafted not to take away legitimate ownership rights, which does not always lead to favorable situations for tribes that want to recover artifacts.

''This is a very specialized area of the law,'' she said. ''And maybe Mr. Rothstein just didn't spend the time to understand it - although, obviously, I can't get inside his head.''

Gerstenblith further noted that members of the Sulzberger family, which owns The Times, sit on the board of trustees of the Metropolitan Museum of Art in New York. ''They do generally come from a pro-collecting perspective,'' she said.

Rothstein told Indian Country Today that he's been traveling, reviewing other museums, so he didn't have time to offer a complete response; however, he said in an e-mail that if his summary of the NAGPRA law is incorrect, ''it should be corrected.'' Otherwise, he said, his ''essays should speak for themselves.''

Leaders with the National Museum of the American Indian have long questioned Rothstein's motives when he turns his pen to Native museums, especially those that involve collaborations with contemporary Indians. And they have long been angry about Rothstein's representations, which they believe have partially influenced the critiques of other journalists.

In a 2006 letter to The Times, former NMAI head Richard West said he was ''mystified by [Rothstein's] characterization of the National Museum of the American Indian. Objects from George Gustav Heye's [a famous Manhattan banker and artifact collector] unparalleled collection are displayed in the museum not only for their aesthetic quality, but also for their spiritual significance or everyday utility.''

Current NMAI director Kevin Gover said there's no way to know for sure why Rothstein continues to have a beef with the museum. ''I try to assume the best about him and his criticism,'' he said.

''At its open, it was important that the museum be a voice for the communities to speak through. We're quite unapologetic about that.''

But, he added, the museum has evolved over time, incorporating more of the scholarship of the sort critics like Rothstein have complained about. Still, he's adamant that the museum should never lose or diminish the strong voices behind the Indian communities it strives to portray.

''I don't know if Mr. Rothstein has been to the museum lately,'' Gover said, ''but he is more than welcome to visit.''