Native American Cultural Property Law
Human Rights Legislation

by Hon. Sherry Hutt

In the larger scope of history this is a small thing; in the smaller scope of conscience, it may be the biggest thing we have ever done.

— Congressman Morris Udall, October 1990 ¹

This decade began with a resurgence of human rights activism on a scale not seen for 30 years. The recent events were quiet ones. The scene of the activity was the U.S. Congress and the state legislatures of almost every state in the country, including Arizona. This venue posed a certain irony, since it was the legislative process which proved unresponsive in the 1960s and forced human rights issues into the courts. This time it was the judicial system which failed to respond.

The beneficiaries of this recent activity have been Native Americans, a group only indirectly benefited by the sensitivity to diversity and human equality of the 1960s civil rights laws. The new laws are not concerned with equality in employment, housing and education, but pertain to the previously overlooked issue of cultural property rights of Native Americans. The laws discussed in this article do not create new or special rights for Native Americans. Rather, they guarantee to them property rights otherwise protected by our constitution and laws. The enforcement of existing but abridged rights is the essence of human rights legislation.²

Recognition of Cultural Property Rights
as Protected Human Rights

Cultural property can be defined as an evolving irreplaceable resource that defines the unique existence of a group of people. It is the underpinning of group identity in a spatial and temporal context. It may be the tangible expression of humans interacting with their environment; ³ or the intellectual property of groups, such as Navajo ceremonial songs; or ethnobiological knowledge.⁴ The preservation of cultural property rights is essential to give meaning to human existence and as a bond against enslaving a people by diminishing the definition of their existence.⁵

"The distinction sometimes made between property rights and human rights is spurious. Human rights are simply part of a person’s property rights." ⁶ The concept is so simple it can be taken for granted, unless you are within a group of people whose property is administered by a government which historically has assigned their rights to others. Since 1906, the United States has retained the authority to control permits for excavations on lands under its jurisdiction, the fruits of which are to be placed in public museums.⁷ A social ethic developed in this country which allowed items held in common and placed in accessible areas, not under lock and key, to be available for personal collection. Even burials, the rights to the disposition of which under English common law and American property law are reserved to descendants, have been assumed to be government property when they are the burials of Native Americans. ⁸

Native people recognize that there is a connection between their well-being and the places and items which define their culture and which may be deified. In contrast, the modern, Christian and anthropocentric views have allowed a linear concept of a beginning and end to time on earth to rule the use of cultural and natural resources. "This linear concept is accompanied by an implicit faith in perpetual progress." ⁹ The result has been a lack of respect for the cultural traditions of native people. We have come to a point in time where respect for the cultural property of Native Americans must be viewed as a human right.

The questions which are addressed by an examination of cultural property law are not whether scientific inquiry in archeological excavations, or mass development of the landscape for human occupation, should occur. Rather, the issues are framed in terms of who has the right to decide. There must always be an initial inquiry into who has the right to control the disposition of an item. "The forced sharing of space brings home the forced coexistence with other people in the world and the forced sharing of the decision-making power."¹⁰ The recognition of Native American cultural property rights brings to an end the domination of Eurocentric assumptions concerning property rights. The recent example of the dinosaur "Sue" illustrates this point. Scientists criticized the sale of "Sue," but neglected to consider the property rights of the Native American landowner. Dinosaur remains are periodically sold in this country, and Native Americans have the same property rights as all other landowners.

Failure of the Courts to Uphold Cultural Property Rights

It may be asked, if cultural property rights are inherent within existing law, why was there a need to devise specific new legislation? The answer given to this question during the Senate hearings before the Interior and Insular Affairs Committee in 1990 was that attempts to enforce property rights using available legal means would not be upheld in court. ¹¹ Numerous examples were cited in the Congressional hearings to illustrate the present status of the legal culture. Only two examples will be noted here.

During a frolic in the Florida swamps in 1964, Arnold Clifford Newman came across the coffin of a Seminole Indian, who had been resting in peace for about two years, and removed the skull and other items. In overturning his grave defacement conviction on appeal, the court classified the law as analogous to malicious mischief; which must be perpetrated "wantonly and maliciously." ¹² The court discussed at length the virtues of Mr. Newman, found that such a paragon of virtue was not capable of wanton and malicious acts and quashed the conviction.

In Ohio, grave desecrations of older remains were routinely ignored, as the courts there have long held that remains in an advanced stage of decomposition no longer constitute a corpse.¹³

Although Native American mortuary traditions have not been given great weight in court, return of cultural property to tribal people has occurred on a voluntary basis. The Heard Museum in Phoenix repatriated Apache War Shields as an action of the board of directors prior to the imposition of legal requirements. The Heard’s Director, Dr. Martin Sullivan, had overseen the return of Wampum Belts to the Onondaga Nation while in his previous capacity as director of the New York State Museum. The Onondaga had not fared as well in court. They had brought an action in 1899 for return of stolen property and the matter was unresolved for 75 years. ¹⁴

When pursuing stolen property, common law theories should have been adequate. However, property held by the government or discovered pursuant to an excavation permit is deemed by law to be government property and may not be deacquisitioned by even the most well-meaning public servant.

State and Federal Legislation

State Laws: Most states have health and safety laws which regulate care of the dead and cemeteries. Prior to 1988, most of these laws only pertained to marked graves in clearly established cemeteries. In the often-cited opinion of the California Court of Appeals in Wana the Bear v. Community Construction, Inc., ¹⁵ the California burial law was held not to apply to unmarked Native American burial grounds which predated the law. In states where protection was afforded to Native American traditional burials the penalties were minor and were insufficient to deter looting or vandalism.

Public attention was focused on the the issue of Native American burials in 1988, when National Geographic published a lengthy article on the massive destruction of more than 800 burial sites on a private farm in Kentucky and the failure of the government to respond. Between 1988 and 1990, almost every state in the country amended its laws to include protection for Native American burial sites. ¹6 States which previously had mild protection laws amended them to add felony sanctions for destruction and theft of items from sites whether or not the sites were marked. This new generation of laws also included state statutes which required private landowners to report the presence of burials on their land to a state authority and to become involved in repatriation of remains to the appropriate tribalauthority.

Arizona Law: Arizona was at theforefront of the recognition and protection movement when in 1990 it amended the Arizona Antiquities Act to include comprehensive provisions for the repatriation of sensitive Indian material.¹⁷ Arizona statutes Title 41, Article 4, protects "Archaeological Discoveries." Section 844A requires that the person in charge of any excavation on state land report to "the director of the Arizona state museum the existence of any archaeological, paleontological or historical site or object that is at least fifty years old," and take reasonable steps to secure and preserve the object. The state museum was made responsible for the curation of the item as property of the state. As of September 20, 1990, the statute was amended to add a process for notice to tribes and an opportunity for tribes to assert their ownership rights to "human remains, funerary objects, sacred ceremonial objects or objects of national or tribal patrimony."¹⁸

The Arizona repatriation law provides that the director of the Arizona state museum will give notice of discoveries to all individuals with a kinship relationship to the human remains, all groups that may have a cultural or religious affinity to objects, curatorial staff of the Arizona state museum, faculty members of state universities who may have significant interest in the items, and to the state historic preservation officer. Notice will also be given to tribes which occupy or have occupied the land on which the discovery is made, the Arizona commission on Indian affairs and the intertribal council of Arizona. The director is then charged with overseeing consultation and agreements on the disposition of items. If no agreement is reached the director shall defer to the nearest relative for the treatment of human remains; if no relative is known, or if the items in question are religious or cultural items, a disposition will be made in accordance with the desires of the culturally affiliated tribe. In any event, the disposition of items shall be handled in an efficient manner so that an affected construction project may be completed in a timely manner.

When there is no claim for the return of human remains by a tribe, the state museum is charged with leaving the remains in place when possible or reintering them when removal is necessary. Reburial may occur up to a year after the excavation to allow for scientific study. Claims may also be made by a tribe for culturally affiliated human remains or objects in the possession of a state agency as of September 20, 1990. When there is a dispute between parties the statute requires arbitration, and the arbitrator may be the state historic preservation officer. Arbitration decisions are appealable to the superior court.¹⁹

The Arizona burial law, Title 41, section 865, which pertains to burial places more than 50 years old on state or private land, was also amended in 1990. It is now a class 5 felony to intentionally disturb human remains or funerary objects on state, local government or private lands, without permission of the director of the state museum. It is also a class 5 felony to unintentionally disturb burials and then neglect to report the find to the director or to further disturb a burial. ²⁰ A person "who intentionally possesses, sells or transfers any human remains or funerary objects that is excavated or removed" in violation of this section are also subject to felony prosecution and forfeiture to the state of the item and the proceeds of any sale. ²¹

Federal Law: There are two main pieces of federal legislation which concern Native American cultural property: the Archeological Resources Protection Act (ARPA) of 1979, which is focused on the preservation of resources for their scientific value, and the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, which is truly Native American cultural property rights legislation.²²

ARPA provides the federal government with a flexible tool to preserve and protect irreplaceable archeological resources. Archeological resource is defined as "material remains of past human life or activities" and which are at least 100 years of age. ²³ ARPA contains a uniform system of permitting for excavations on federal land, and criminal or civil sanctions for the excavation, removal, damage or defacement of archeological resources on federal or Indian lands without a permit.²⁴ Prosecution is also provided for the interstate transportation for sale or exchange of archeological resources obtained in violation of state or local law from state or private land,²⁵ and for sale in the United States of items stolen from foreign entities. ²⁶

Thus this law affords protection to ancient Indian burials and cultural property, which are all deemed to be property of the federal government, to be curated and studied under federal government direction. An exception to federal government ownership arises only if the items are located on tribal land, which creates a presumption of ownership in the tribal landowner.

ARPA is repugnant to many Native Americans because it treats sensitive objects and human remains as scientific resources. In the course of a criminal prosecution a dollar value must be placed on these items. The fundamental flaws in the law, from the standpoint of human rights, are the failure to determine property rights and the underlying assumption that items on federal land are federal property.

NAGPRA was drafted to overcome the shortcomings of ARPA and to institutionalize the consideration of Native American property rights with regard to human remains, funerary objects, sacred items and objects of cultural patrimony. In large part NAGPRA and the Arizona legislation are parallel treatments of Native American cultural property rights. Both laws require a determination of property rights from the time of discovery of human remains and cultural items, and both laws allow for the repatriation of items previously regarded as government property. Both laws contain provisions for felony prosecution for trafficking in Native American human remains and cultural items without proper authority.

NAGPRA goes farther than the Arizona law to specify a process for the disclosure of items in the possession of federal repositories and museums which receive federal funds. These institutions must have completed a general summary of all Native American cultural items in their possession and disseminate those compilations to all federally recognized tribes which might have an interest in the items. The purpose of the summary is to give notice to tribes of the contents of the collection so that they may dialogue with museums and identify the protected items which they may desire to have returned. The federal agencies and museums which receive federal funds must also complete an item-by-item inventory of human remains and associated funerary items and furnish those lists to all parties who may have an interest. A statement of cultural affiliation on an inventory is a binding statement of the right of the culturally identified group or lineal descendent to claim the remains. If a museum which receives federal funds sells an item in its collection that is protected by NAGPRA, the institution is subject to criminal sanctions. ²⁷ NAGPRA provides a good faith defense to later claims when it has repatriated an item in adherence to the NAGPRA process. ²⁸

Pending Native American Cultural Property Issues

The Custody Battle For Kennewick Man: Near Kennewick, Oregon, the remains of a 9,300-year-old man were found and the battle which looms over him may be greater than that of the altercation which caused a spear point to become lodged in his hip. The Army Corps of Engineers, on whose land the remains were found, made a determination that the individual was a Native American and they issued a NAGPRA notice of intent to repatriate to the Umatilla tribe, the aboriginal occupants of the area. A group of scientists and an anglo religious group, the Asatru Folk Assembly, have each brought suit in federal court in Oregon to claim the remains, one for science and the other on personal religious grounds. ²⁹ The court must now answer the threshold question: is Kennewick Man a Native American? If so, NAGPRA applies and the law is clear that only federally recognized tribal groups have standing to make a claim. If not, the Corps will utilize their regular procedures outside of NAGPRA.

This author has no idea whether Kennewick Man is a Native American. However, one thing is undisputably clear under the law, and that is that the decision rests with the Corps. The court may or may not find that the Corps’ decision was arbitrary, capricious or an abuse of discretion and remand the matter back to the Corps for further action. The decision begins and ends with the land managing agency.

If Kennewick Man is determined to be Native American, the next step is to determine by a preponderance of the evidence which tribe among competing claimants shall have custody of the remains. Again, this decision begins with the Corps.

Evidence in Support of Cultural Property Claims: Tribes may have had difficulty in the past perfecting claims to property, because the court did not recognize the common ownership of the property or because the evidence of cultural patrimony was offered by oral tradition. NAGPRA has legislated the admission of evidence based upon "geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion." ³⁰ Since the essence of all evidence is relevance and competence, the law now recognizes that evidence of the status of an object has inherent reliability when offered by the people who are in a position to know its substance, such as an elder of the tribe or a religious leader.

Conclusion

This decade will be marked in history as a human rights period, one in which government action was predicated on a determination of the property rights of individuals. NAGPRA and the laws of its genre provide a process for establishing Native American cultural property rights.

Sherry Hutt is a judge of the Superior Court of Arizona, Maricopa County, and co-author of Heritage Resources Law (published by John Wiley & Sons).

ENDNOTES:
1. Statement to the House of Representatives upon the passage of HR 5237.
2. Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History , 24 Ariz. St. L. J. 35 (1992). See generally 24 Ariz. St. L. J., Symposium: The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation-Related Legislation.
3. F. Berkes & C. Folke, Investing in Cultural Capital for Sustainable Use of Capital, Investing in Natural Capital 1994.
4. Lawrence Yano, Protection of the Ethnobiological Knowledge of Indigenous Peoples, 41 UCLA L. R. 443 (1993).
5. Joseph Sax, Heritage Preservation As A Public Duty: The Abbe Gregorie and the Origins of an Idea, 88 Mich. L.R. 1142 (1990).
6. Yoram Barzel, Economics Analysis of Property Rights, p. 4 (1997).
7. 16 USC 431-433.
8. Margaret Bowman, The Reburial of Native American Skeletal Remains: Approaches to the Resolution of a Conflict, 13 Harv. Envtl. L. R. 147 (1989).
9. L. White Jr., The Historical Roots of Our Ecological Crisis, 155 Science 1203 (1967).
10. Margaret Jane Radin, Reinterpreting Property (1993).
11. Hearings on S. 1021 and S. 1980 Before the Senate Select Comm. on Indian Affairs, 101st Cong., 2d Sess. (May 14, 1990).
12. Newman v. State, 174 So. 2d 479 (Fla. App. 1965).
13. State v. Glass, 273 N.E. 2d 893 (Ohio App. 1971).
14. Onondaga Nation v. Thatcher, 61 NYS 1027 (1899).
15. 128 Cal. App. 3d 536, 180 Cal. Rptr. 423 (1982).
16. Thomas H. Boyd, Disputes Regarding the Possession of Native American Religious and Cultural Objects and Human Remains: 55 MO. L. R. 883, 901, 903 (1990).
17. Paul Bender, 1990 Arizona Repatriation Legislation, 24 ARIZ. ST. L. J. 391 (1992).
18. A.R.S. 41-844(B).
19. A.R.S. 41-844(J).
20. A.R.S. 41-865 (A,B,G).
21. A.R.S. 41-865(G).
22. ARPA 16 USC 470aa-mm (1979), NAGPRA 25 USC 3001-3013 (1990).
23. 16 USC 470bb(1).
24. 16 USC 470 ee.
25. United States v. Gerber, 999 F.2d 1112 (7th Cir. 1993), cert denied, 114 S.Ct. 898 (1994).
26. United States v. Melnikas, CR 2-96-107, Dis. Ohio (1996), conviction for theft of documents from the Vatican library.
27. 18 USC 1170(b). United States v. Slater Museum of Norwich Conn. Sale of a bowl subject to NAGPRA consultation was reversed.
28. 25 USC 3005 (f).
29. Bonnichsen v. United States, No. 96-1481 and 1516 (D. Ore.).
30. 25 USC 3005 (a)(4).