Justifying Repatriation of Native American Cultural Property

Abstract

INTRODUCTIONFor the past six years, museums across the country have been scrambling to determine the origins and appropriate resting places for their Native American collections.'Museums and agencies that previously had no reason to doubt the security of their entitlements now face the prospect of the loss of significant objects.The legislation that has brought about this change in policy and the subsequent potential alteration in property rights is the Native American Graves Protection and Repatriation Act of 1990 ("NAGPRA" or "the Act"). 2 NAGPRA instructs federal agencies and museums receiving federal funds to identify the origin and cultural affiliation of Native American cultural items and then to expeditiously return some of them to culturally-affiliated Indian tribes.But not all items are treated the same.NAGPRA distinguishes various types of "cultural items" and assigns different repatriation procedures to each category.Although the agencies and museums affected are provided with a defense against some repatriation requests, the Act represents a significant policy shift, enabling Native Americans to reclaim cultural items that have long been in the custody of others.Of particular interest is a class of cultural items referred to as "cultural patrimony.""Cultural patrimony" is defined as objects that were owned by the * Assistant Professor, Chicago-Kent College of Law.I am deeply indebted to Carol Rose for reading many drafts of this paper and for her comments and criticisms.Special thanks are also due to Steve Heyman and Richard Wright who provided useful comments on some of the issues raised in this paper.The mistakes are all mine.

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