CULTURAL PROPERTY INTERNATIONALISM AND CULTURAL PROPERTY NATIONALISM: THE CULTURAL PROPERTY PARADIGM

The cultural property internationalism/nationalism archetype is more relevant to disputes over ancient antiquities or artworks held in collections since the artifacts are not part of a living community’s patrimony. Disputes over an object’s representation, whether as part of a shared human identity or as demonstrative of renewed national ties, began in earnest after the end of World War II and continued into the 1950s, with concerns over the movement of stolen art and artifacts as well as over decolonization in former colonies that wished to reclaim their heritage held in European museums. John Henry Merryman states that cultural property internationalism asserts that important cultural objects represent our shared humanity and our collective past and should be able to traverse national borders.^{Footnote 1} This argument would relate to the British Museum’s stance on the Parthenon Marbles, which were purchased by Thomas Bruce the 7th Earl of Elgin from the Ottoman Turks in 1801 and later purchased by the British government in 1816. The British Museum states that, since more visitors can experience the marbles in London, they are well-tended, and, since they are now part of English history, the marbles should stay.^{Footnote 2}

Cultural property nationalism, on the other hand, attempts to create a national identity in connection to the ownership of cultural heritage.^{Footnote 3} This is Greece’s argument for returning the Parthenon Marbles from the British Museum. It feels that the marbles were wrongfully appropriated and that they connect the current Greek state to its successful cultural past—even though the state in its current form has only existed since 1830^{Footnote 4}—and, therefore, that they represent a national identity. The country sees itself as the descendant of the original Athenians who completed construction of the Parthenon in 432 bc. Even though, politically, the area was governed by independent city-states rather than a centralized “national” government, modern Greece views itself as the inheritor and rightful owner of the marbles.^{Footnote 5}

ADDING TO THE OWNERSHIP PARADIGM

This then opens the ownership paradigm to the question: how can claims for the return of human remains and objects relevant to the cultural patrimony of living communities be addressed? Cultural patrimony is defined as objects possessing continual cultural or historical significance to a community. The significance of cultural patrimony is not based on linear time and allows property rights to engage with culture affiliation as a legal value for Indigenous peoples.^{Footnote 6} Merryman’s paradigm has been a standard in ownership discussions, but there are those who find fault with his conceptual framework. Lyndel V. Prott states that cultural property is a “loaded term”:

Prott prefers the idea of heritage to describe Indigenous relationships with objects, which invokes guardianship norms rather than property. It should be noted that the United States tends to use the term “patrimony” to describe these relationships, but this is not necessarily a universal view. Also, Merryman’s paradigm does not include cultural objects that are a part of communal tradition rather than commodity.^{Footnote 8}

Beyond the dichotomy of national and international property ownership is a possible third group of people seeking control of their cultural property. Joe Watkins calls this group “cultural intranationalists” and describes them as peoples seen throughout the world—that is, Native Americans of North America, Aboriginal communities in Australia, and First Nations of Canada, who live within the nation but are also separate from it.^{Footnote 9} He states that cultural intranationalists “often feel that they should be able to control the heritage materials they see as rightfully theirs.”^{Footnote 10} For Watkins, ownership rights for Indigenous peoples are “rarely equivalent to that of the nations within which they exist.”^{Footnote 11} Adding a cultural indigenism component into the ownership paradigm would more fully address cultural and human rights of Indigenous peoples. This layering of Indigenous rights with communal rights and recognition of cultural patrimony affect cultural affiliation and the development of repatriation legislation.^{Footnote 12} Inclusion of cultural property indigenism language in discussions of property and heritage control would address concerns beyond property ownership and into human rights law.

This is where I argue that an inclusion of cultural property indigenism, first mentioned by Karolina Kuprecht and not a commonly used term when discussing cultural property claims, could give voice and fill the gap between cultural property nationalism and cultural property internationalism to address Indigenous ownership claims.^{Footnote 13} Cultural property indigenism would help validate the narrative for Indigenous property claims on an international scale. Cultural property indigenism is placed within the human rights legal framework when considering cultural property laws relevant to Indigenous communities and allows for arguments relating to cultural patrimony. Since Indigenous peoples around the world have similar feelings in relationship to the loss of their cultural objects, it is possible to think of cultural property indigenism as an umbrella legal definition for repatriation claims.

The theoretical inclusion of a cultural property indigenism component to repatriation claims is most fully understood when looking at two federal repatriation policies in the United States: the 1989 National Museum of the American Indian Act (NMAIA) and the 1990 Native American Graves Protection and Repatriation Act (NAGPRA).^{Footnote 14} These policies do not use the phrase “cultural property indigenism,” but they embody components of this theoretical understanding of property. NAGPRA can be regarded as an instantiation of the cultural property indigenism paradigm. NAGPRA legislation has addressed Indigenous property claims nationally, but inclusion of cultural property indigenism into the international cultural property discussion could formalize these claims into a worldwide framework and encourage the formulation of cultural property laws that are relevant to international Indigenous communities.

A HISTORY OF THE SETTLER MENTALITY IN THE UNITED STATES

In the United States, museums and Indigenous cultures have a shared, intertwined past dating to the colonial expansion period.^{Footnote 15} How we view museums today, as well as future curatorial decisions at these institutions, is rooted in this relational past. During the creation of colonies, groups of people were migrating to new lands and attempting to simulate the homes they left behind. The colonies were translations of what the colonists understood to be “normal”; they were not only attempts at establishing familiar copies of their cultural identity but also controlling/erasing what was there before them. As Benedict Anderson points out, three institutions of power that were utilized to control were the “census, the map, and the museum: they profoundly shaped the way in which the colonial state imagined its dominion—the nature of the human beings it ruled, the geography of its domain, and the legitimacy of its ancestry.”^{Footnote 16} This built upon the idea that to colonize, settle, and exploit the resources of the new areas, the Indigenous populations needed to be controlled. Settler colonialism differs from colonialism in that settler colonialism wants territory and/or land instead of just labor for economic gains.^{Footnote 17} As Patrick Wolfe points out, “settler colonies were (are) premised on the elimination of native societies … the colonizers come to stay—invasion as a structure not an event.”^{Footnote 18} This is very important to the discussion of repatriation rights because settlers continued to spread out and displace Native Americans through a long process instead of a single moment. The process of colonizing the United States involved the “movement and reproduction of communities” by the settlers as well as the “violent replacement and/or displacement of indigenous Others.”^{Footnote 19} This violence is later reinterpreted and disavowed by the settler colonizers to create a new narrative of a “peaceful” takeover.^{Footnote 20} The idea of a new narrative will become important for repatriation discourses in the twentieth and twenty-first centuries.

Due to the Eurocentric, and predominantly Christian, religious beliefs of the settler colonizers, these Indigenous populations were treated as inferior and primitive. They believed that the Indigenous people they encountered needed to be civilized and brought into the Christian church—a belief that coincided with their economic and expansionist goals and then continued under the secular guise of Social Darwinism and the principles of hierarchical human development.^{Footnote 21} The colonizers attempted either to assimilate or decimate the populations^{Footnote 22} in order to control them.

MUSEUMS AS AN EXPRESSION OF SETTLER MENTALITY

As stated earlier, museums became an important institutional power for the settler society. Cultural artifacts and human remains were collected and sent back to the centers of the empires to show dominion over the peripheries and record what they viewed as dying, primitive civilizations. Museums essentially started as “cabinets of curiosities … crude exhibits … meant to be theaters of wonder, propaganda, or even displays of personal wealth and power.”^{Footnote 23} Colonial assumptions of “salvage” ethnography meant that vast quantities of cultural artifacts were collected—haphazardly obtained, often without permission from Indigenous communities, but sometimes bartered or sold—and not necessarily identified properly before being transferred to museums or other institutions for study and display. Early ethnographers believed they were studying lower orders of society when visiting Indigenous communities, and this attitude allowed established practices that divorced objects from a cultural context through collection methods. Objects and human remains were decontextualized and took on a new narrative within the lens of Western knowledge and aesthetic interpretation.^{Footnote 24} Fortunately, this view began to change in North America with the anthropologist Franz Boas in the late 1800s as he restructured cultural anthropology away from the racial evolutionary models of the time and influenced institutional practices.^{Footnote 25} In 1893, Boas became the temporary curator of anthropology at the Columbian Museum of Chicago (this would later become the Field Museum of Natural History). Although Boas led the academic fight against scientific racism and hierarchical understandings of culture, he also bought, sold, and traded human remains.^{Footnote 26} When Boas came to the Columbian Museum of Chicago, he brought with him over 400 human remains, which were added to the collection. George Stocking states that when Boas came to the Columbian Museum he “began to respond more actively to public issues, and his first response casts an interesting light on some ambiguities of his own position, as well as that of anthropology generally.”^{Footnote 27} This ambiguity stemmed from common collecting and display practices of the time.

In the curation of the historical ethnographic survey museums—also known as universal survey museums—artifacts obtained at the outposts of the empire gave evidence of the exotic “Other” and the perception that Western knowledge was more advanced, and, therefore, better than, Indigenous knowledge and cultures. Vast collections of human remains, culturally significant objects, and everyday material culture were gathered and studied or placed into storage. Many collections in various institutions, like the Smithsonian, were left in storage anonymously decaying until the adoption of NAGPRA in 1990 brought them to light in the cataloging of collection inventories. With the adoption of NAGPRA, ancestral human remains, objects of funerary ceremonial importance, and objects with cultural patrimony held by federally funded institutions had to be catalogued and returned (when possible) to lineal descendants or culturally proximate Indigenous communities.

The construction of Indigenous repatriation policies has its basis in the legacy of the universal survey museum. This museum was the classic construct of a large collection in the public art museums of the eighteenth century.^{Footnote 28} Museums in this category include the Field Museum of Natural History in Chicago, the University of Pennsylvania Museum of Archaeology and Anthropology, which is commonly called the Penn Museum in Philadelphia, and the Smithsonian Institution in Washington, DC. The classic universal survey museums based their displays in the pedagogical framework that knowledge was to be received passively through the exhibit.^{Footnote 29} The audience would come to the glass case, read a description about what they were seeing, and move along to the next object. Perhaps they came to the museum with some background education, but it was entirely possible they had no historical knowledge of what they were viewing.^{Footnote 30} The “best” examples were shown and were often completely divorced from the proper milieu. This contextual disconnect created by the narrative and display cases was absorbed by the museum visitor and became part of their understanding of other cultures.^{Footnote 31} These objects took on a new contextual dimension of cultural significance in the museum and gained new meaning outside of the original perspective. Museums, their staff, and their patrons felt a deep connection to the artifacts and displays even if they had no personal, familial relationship to the cultural artifacts; by recontextualizing these objects in the museum setting, they became appropriated by a different group.

CULTURAL SHIFTS THAT LED TO CHANGES IN REPATRIATION NORMS

From the beginning of colonization, Native Americans were treated horribly. The policy of assimilation or annihilation was devastating to Native American cultures in its pursuit to “civilize” through the practice of Christian conversion, which was required to remain on the land and in boarding schools, and the installment of a Bureau of Indian Affairs (BIA), to name a few.^{Footnote 32} The push for religious conversion altered burial practices and “serious and sustained grave looting was carried out by non-Indians for purposes of revenge and robbery.”^{Footnote 33} Looking at historical US federal policies, the nation did not always respect Indigenous rights. Early on, the practice of signing treaties with Indigenous people occurred as European colonizers expanded in the Americas. Later, these treaties were diluted or discredited in order to integrate the people into the US nation, which served in many ways to take away the sovereignty originally granted.^{Footnote 34} Canada had similar legislation—the 1876 Indian Act—which was enacted to “civilize and assimilate” Indigenous peoples in the country.^{Footnote 35}

In the early 1900s, attitudes started to shift in how Native American sites were viewed and experienced. Historically, there have been several legislative steps that have expanded Indigenous rights on a broader scale. Beginning with the 1906 Antiquities Act, signed by President Theodore Roosevelt, Native American sites began to receive federal attention.^{Footnote 36} The Antiquities Act gave Roosevelt the authority to create national monuments (not parks) on federal lands.^{Footnote 37} This was significant because it protected prehistoric Native American sites and artifacts on federal lands, and private collectors were no longer allowed to excavate objects at these protected sites.^{Footnote 38} Important objects and excavated human remains were not returned to Indigenous peoples though but, instead, were shipped to museums, universities, and other institutions for study. In the twentieth century, Indian legal rights began to be defended, and federal policies shifted. The Indian Defense League worked to get eastern tribal treaties recognized in both the United States and Canada.^{Footnote 39} Later, in the 1930s, John Collier, the commissioner of Indian affairs under Roosevelt, worked on the creation of the 1934 Indian Reorganization Act (IRA).^{Footnote 40} The IRA allowed for Native Americans to establish tribal governments based on the US version of governance and ended allotment.^{Footnote 41} The 1935 Historic Sites Act protected and preserved historic sites, buildings, and objects with national significance that were considered to be beneficial to US citizens.^{Footnote 42}

The 1940s and 1950s saw a few changes in federal policies related to land claims, the termination of reservations, and the dismantling of federal administration. The Indians Claims Commission Act (ICC Act) was passed in 1946 to settle treaty disputes and tribal land claims.^{Footnote 43} However, the commission was not established to return territory but only to offer a monetary compensation based on the amount the price per acre cost at the time it was originally taken.^{Footnote 44} The ICC Act also did not regulate for other claims, such as cultural property, and only referred to land claims. In the late 1940s, Congress was seeking to put parameters in place to end the responsibility of the federal government over tribes and to dismantle the reservations. This was claimed as an “emancipation” from federal management to state control; it was viewed by many as the end of federal protections. In 1954, a termination policy came to fruition in the form of the House Concurrent Resolution 108 and later through Public Law 280.^{Footnote 45} As a result of the law, federal management ended for 109 tribes. Due in part to these restrictions, the activists in the 1960s ushered in the Red Power movement, which included protests, workshops, and other political events. Native American civil rights are deeply connected to the recognition of sovereignty and self-determination.^{Footnote 46} State statutes and federal policies began to be more prevalent as civil rights movements gained traction.

In the 1960s, federal acts “put the burden of proof on Native Americans regarding sacred sites, and they emphasized preservation—and then only in exceptional circumstances—rather than repatriation of burial remains and Native American cultural property.”^{Footnote 47} The 1966 National Historic Preservation Act was created to preserve archaeological and historical sites in the United States.^{Footnote 48} The 1966 Act explicitly mentions that it is policy to be in cooperation with other nations, local and state governments as well as Indian tribes and private organizations and individuals. In 1968, the American Indian Movement (AIM) was founded in Minneapolis. Other chapters of the organization opened in Milwaukee, Cleveland, and Denver. AIM works as an Indian rights organization and later served to highlight Native American issues in the media.^{Footnote 49} Activists were working to address many Indigenous rights and needs. The Native American Rights Fund was also established in 1970 to provide legal assistance to those in need. In March 1978, a Native American protest march began in San Francisco and ended four months later in Washington, DC. It was known as the Longest Walk and addressed the issues of treaty rights being presented in Congress. Along the way, those participating visited institutions that held Indigenous remains and sacred objects.^{Footnote 50}

It was not until the 1978 American Indian Religious Freedom Act was signed that it became law that federal agencies should examine their policies in relation to traditional religious rights and cultural practices; however, this law was lacking in enforcement.^{Footnote 51} This was followed by the Archaeological Resources Protection Act, which was enacted in 1979 by Congress in response to illegal excavations and the selling of artifacts and human remains.^{Footnote 52} It was also the first legislative act requiring consultation with the Indigenous peoples on the land.^{Footnote 53} Neither of these acts went far enough to protect Indigenous cultural property and ancestral remains, many of which were still held and displayed by museums and institutions across the country. As Kathleen Fine-Dare states, “the 1980s saw a transition from sieges, occupations, and other types of more direct political protest to legal actions at federal and international levels.”^{Footnote 54} Even the language norms of discussing repatriation began to change. The idea of returning ancestral remains home found support in legislative discussions, Indigenous advocacy, and conversations at the museum level. The debates in the 1970s and 1980s ultimately culminated in two legislative acts: the NMAIA and NAGPRA. With discussions for a new National American Indian Museum in the 1980s, repatriation claims gained traction and quickly cascaded into federal legislation.^{Footnote 55} As Suzan Shown Harjo, an established poet, author, and human rights activist for Indigenous rights said in her interview with Robert Preucel in 2011: “[I]t took us 22 years from 1967 to 1989 to get the historic repatriation provision in the National Museum of the American Indian Act. And it took us only eleven months to have it apply to everyone else in America. So that’s the value of going after the king of the mountain.”^{Footnote 56}

The culture shifted, and the moment of rupture for repatriation arguments tipped the scale with the NMAIA, followed swiftly by NAGPRA in 1990. This sudden change occurred after long legal battles and activism in the 1970s and 1980s, which altered the foundational understanding of holding sacred objects and human remains in Indigenous collections in US museums. As Harjo explains, legislative change had a cascading effect once the power relationship narratives changed.^{Footnote 57} Essentially, changes in societal and institutional norms altered the power relations at the museums, and, despite vocal opposition by some in the scientific community, there was no going back to a pre-repatriation state at the museums.^{Footnote 58}

FORMALIZATION OF REPATRIATION IN THE UNITED STATES

In 1989, the Smithsonian Institution stated they would begin efforts to catalogue, and return whenever possible, human remains and important grave goods to Indigenous groups from their vast collections accumulated during “salvage” ethnography expeditions.^{Footnote 59} This was also due in part to the Heye Foundation’s Museum of the American Indian moving from New York to the Smithsonian Institution collection in 1989.^{Footnote 60} George Gustav Heye’s (1874–1957) extensive collection of Native American objects had been acquired through legal channels of the day, but today’s ethical standards would question many of these acquisitions.^{Footnote 61} This was the first large-scale attempt at repatriation in North America, and it occurred under the NMAIA.^{Footnote 62} The NMAIA was a precursor to national legislation, and objects held by the National Museum of the American Indian (NMAI) are subject to the NMAIA. The NMAI has its own database system and repatriation board. The NMAIA and NAGPRA run concurrently, but they are controlled by different hierarchies.^{Footnote 63} In 1996, an amendment, Public Law 104-278, was passed that established deadlines for when inventories and summaries should be completed by the Smithsonian and sent to tribes in the United States; inventories for unassociated funerary objects, sacred objects, and objects of cultural patrimony were to be completed by 31 December 1996 and inventories for human remains and associated funerary by 1 June 1998.^{Footnote 64} The amendment also required two Native American traditional religious leaders be added to the Smithsonian’s Repatriation Review Committee.^{Footnote 65}

In 2004, the NMAI opened on the National Mall in Washington, DC; its collection currently houses 825,000 objects from the Americas.^{Footnote 66} The curatorial management at the NMAI has sought to present the Native American narrative in a new way. The mission statement of the NMAI states:

The NMAI’s role is to “affirm and enliven Native cultures in the present” rather than the more traditional role of other museums.^{Footnote 68} The NMAI has been equated with creating an idealized version of Native American history and privileging the narrative based on ethnicity. Complaints have been raised that exhibitions at the NMAI are “banal and celebratory, rather than informative and exploratory.”^{Footnote 69} One might assume this criticism is stating that the pendulum has swung too far in trying to correct for past misrepresentations. In attempting to connect American Indians to their cultural heritage, historical facts and larger narratives are lost.

In a more favorable light, the NMAI is a forerunner for museums grounded in representing a specific identity or ethnicity.^{Footnote 70} It is not a private or tribal museum; instead, it has a foundation in federal legislation. According to the guidelines and procedures for the National Museum of Natural History (NMNH) under the umbrella of the Smithsonian Institution,^{Footnote 71} the repatriation program at the NMNH works to generate respect and understanding for contemporary Native perspectives, which can change. The NMNH also operates according to the NMAIA. Interestingly, the NMAIA did not define cultural affiliation initially, and a similar regulation based on NAGPRA’s cultural affiliation clause was included later.^{Footnote 72} It was specifically enacted in relation to the Smithsonian Institution’s collection but was amended after the passage of NAGPRA to more closely align the two.^{Footnote 73} The Act also ruled that seventeen of the twenty-five members of the trustee board must be Native American.^{Footnote 74}

LARGE-SCALE NATIONAL REPATRIATION POLICY: NAGPRA

The following year saw the adoption of NAGPRA, the most progressive legislation concerning the protection of Native American sacred objects and human remains, but even it is limited in its scope and implementation across the country.^{Footnote 75} For almost twenty-eight years, NAGPRA has detailed regulations for museums and other institutions, as well as for excavations, receiving federal funding in relation to human remains, grave goods, and objects of cultural patrimony.^{Footnote 76} Only those individuals and communities who can prove lineal or cultural affiliation claims are considered for repatriation fulfillments, which is something that is often hard to do. The claimants must also be federally recognized, and, unfortunately, the government does not acknowledge every community that identifies as Indigenous.^{Footnote 77} This delegitimizes some communities on a national level through the denial of Indigenous sovereignty. Museums are not required to consult with communities that are not federally recognized, but they can return human remains or cultural items to non-federally recognized communities if they consult with the NAGPRA Review Committee.^{Footnote 78} Non-federally recognized tribes can also work with culturally affiliated, federally recognized tribes if they want to make a claim. These normative aspects of NAGPRA are engrained in the workings of the museums after almost three decades of application and changes in education and training for students and employees.

VALUE CHANGES OVER TIME

These cultural and institutional value shifts demonstrate the power of language to enact changes in normative behavior.^{Footnote 79} The social construction of what the nation-state viewed as the ethical treatment of Indigenous cultural objects and ancestral remains changed with the creation of NAGPRA. Before NAGPRA, repatriation claims were handled on a case-by-case basis and determined by the museum’s decision, but, after NAGPRA, museums were required to work with Indigenous communities, publish inventories of their collections, and address repatriation claims in a more systematic way.

Indigenous sovereignty, initially recognized and then disavowed and then recognized again, is wrapped in historic discursive language in the United States. The 1989 shift in policy shows how values have changed over time. There is now a critical distance from the initial NAGPRA legislation to see how its affect has changed over the last twenty-eight years. There has been a dramatic shift from the initially entrenched dominant discourse, which held that “Native American remains and sacred objects should be on display in museums,” to a new dominant discourse, which encourages “repatriating Native American remains and sacred objects.” This new discourse has become normalized and the dominant entrenched discourse.^{Footnote 80}

One of the problems in addressing Indigenous claims for repatriation is the Western, Anglo-American legal structure, which is constructed within a liberal ownership and property rights framework. This structure does not necessarily consider Indigenous concerns—that is, communal rights, transnational borders for sovereign Indigenous nations,^{Footnote 81} and nesting cultural affiliations.^{Footnote 82} There is a need for legal pluralism within the system (Indigenous sovereignty within the nation-state) to explore ownership norms affecting repatriation efforts today. One of the ways in which NAGPRA addresses this is through a cultural affiliation clause in its legal language.^{Footnote 83} The affiliation clause recognizes a group identity relationship that can be traced between the past and present members of Indian tribes or Native Hawaiian organization. Cultural affiliation requires evidence based on geography, kinship, biology, archaeological evidence, oral traditions, linguistics, expert opinion, and so on as proof. According to NAGPRA, cultural affiliation is defined as

This component of NAGPRA works within the framework of accepted property laws in the Anglo-American legal system.^{Footnote 85} NAGPRA also requires that sacred objects, or objects with cultural patrimony, have links to traditions today: “Sacred objects additionally have to be necessary for religious practices, and cultural patrimony has to be of ongoing importance to the Native American group.”^{Footnote 86} Essentially, NAGPRA is a formalization of the repatriation policy into federal legislation that creates norms and regulations for what counts as Indigenous cultural “affiliation” in the United States.

Cultural affiliation can be a subjective variable, given how the United States recognizes tribes and Indigenous communities. There exists a binary of rights between communities that are federally recognized or unrecognized by the government. Federal recognition means that there is a government-to-government relationship between a tribe and the federal government. Federally recognized tribes appears on the Federal Register, which is maintained by the BIA. To be included on the BIA list, tribes must (1) be recognized by the executive branch or through petitioning for federal status through the Federal Acknowledgement Process;^{Footnote 87} (2) have a recognized government-to-government relationship with the United States based on a congressional bill passage; or (3) have recognition through a judicial ruling in the federal courts. Non-federally recognized Indigenous groups under NAGPRA have more ambiguous relationships based on their connection to other tribes, their history, and their location.^{Footnote 88}

A highly publicized example of this cultural affiliation argument is the case surrounding the Kennewick Man,^{Footnote 89} the name applied to a set of prehistoric human remains found in Kennewick, Washington, in 1996.^{Footnote 90} Several tribes claimed him as one of their ancestors even though he was approximately 9,000 years old and no direct lineal connection could be made at the time. To them, he was known as the “Ancient One” and was an ancestor even if a direct connection could not be made. To briefly summarize, there was a lengthy legal battle over who should maintain control of the remains. The US Army Corps of Engineers initially decided to repatriate the prehistoric remains to area tribes under NAGPRA, but a suit was filed by a group of scientists who stated that the prehistoric remains were probably more closely related to people from Southeast Asia and that cultural affiliation could not be established to present Indigenous communities.^{Footnote 91} Eventually, DNA tests in 2015 proved he was related to modern Native American peoples, and he was returned under Section 1152 of the 2016 Water Infrastructure Improvements for the Nation Act:

INTERNATIONAL LEGISLATION INSPIRED BY NAGPRA

Examining NAGPRA and other national models establishes normative repatriation and restitution trends. International policies on cultural property law have been influenced by work done in the United States and the creation of NAGPRA and the NMAIA,^{Footnote 94} but nations like New Zealand and Australia also have legislation that predates the NMAIA and NAGPRA.^{Footnote 95} Formalization, similar to NAGPRA, on an international level might not be replicable, but national models demonstrate normative trends that could be adapted into a more enforceable international policy to address Indigenous ownership claims.

“SCALING UP” THE FORMALIZATION OF CULTURAL PROPERTY INDIGENISM

The repatriation of cultural objects and ancestral remains is an important symbol for larger Indigenous claims to sovereignty and territorial rights. As pointed out by Kuprecht, tangible cultural objects cannot be separated from their intangible meaning.^{Footnote 121} These tangible cultural objects also act as representatives of lost sovereignty and territory as well as other past atrocities. Interest in cultural property claims has become a broader issue due to increased Indigenous rights discussions in international circles, especially those with colonial pasts and Indigenous collections in their museums. International repatriation claims are made, but they are not necessarily honored due to several factors, including cultural property nationalism/internationalism debates and varying nation-state property laws.

Arguments can be made that repatriations of ancestral remains are a knee-jerk reaction to prove nations are more than inheritors of a settler colonial legacy. Whether this is true or not, we should ask if there are more substantial acts to decolonize our way of thinking and correct past injustices.^{Footnote 122} It is important to consider that cultural property claims are framed in Western legal constructs, and this may limit how we view objects and human remains as property one can individually/institutionally own, like bric-a-brac, rather than significant cultural patrimony and ancestral remains. The legal issues that occur are also prejudiced against Indigenous peoples since they are tasked with producing documentation to show ownership. This is slowly changing as we become more conscious of the need for the recourses that repatriation of human remains or sacred ceremonial objects establishes, but Western bias makes this difficult in the court systems.^{Footnote 123}

If it were accepted as a viable argument, separate from cultural property nationalism and internationalism claims, cultural property indigenism could become part of the international legal framework. As discussed earlier, the new entrenched dominant repatriation discourse seen in the United States is also seen elsewhere around the world in other nations with colonial pasts, like Canada, New Zealand, and Australia. The repatriation conversation did not immediately change in one country and then subsequently influence others. Instead, it is a change that happens concurrently. It has stops and starts compared to other civil rights movements and national history. But it is still based on a normative change in attitudes that seems to have some universal momentum in altering perceptions worldwide.

NORMATIVE ASPECT OF FORMALIZATION AND INTERNATIONAL INDIGENOUS RIGHTS

Beginning in the twentieth century, international governing bodies like the International Labour Organization (ILO) and the United Nations (UN) began introducing doctrines and declarations to specifically address Indigenous concerns. This began slowly and gained momentum after World War II, due in part to the massive decolonization of the Third World, recognition that marginalized groups needed protection against fascism and discriminatory power regimes, and a growing middle class of Indigenous peoples who could help fund international efforts to promote their communal agendas.^{Footnote 124} The 1954 Hague Convention and the 1970 UNESCO Convention began to address national cultural property concerns during and after times of conflict and when items have been illicitly removed from a nation.^{Footnote 125} In 1995, UNIDROIT continued this international law conversation on the illicit movement of property as an intergovernmental organization.^{Footnote 126} Although direct discussions addressing Indigenous concerns over their appropriated artifacts began in earnest in the 1970s and 1980s, it was not until the early 2000s that other conventions on cultural heritage were highlighted.

The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage was enacted to regulate respect for Indigenous customary law; however, it does not address past issues of Indigenous cultural property.^{Footnote 127} The broad definition of heritage under this Convention includes cultural property: “According to Article 2.1, the instruments, objects, artefacts, and cultural spaces associated with intangible heritage are covered by the Convention as well.”^{Footnote 128} This was followed by the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which is viewed as a response to the effects of globalization.^{Footnote 129} The Convention promotes “cultural development and intercultural dialogue and aims at the protection of states’ autonomy in governing cultural expression.”^{Footnote 130} Also in 2005, the UNESCO Database of National Cultural Heritage Laws was created, and it is possible to search 2,756 laws of the 188 member states at this time. The accessibility to information regarding the laws enables all actors to be aware of legislation for the protection of cultural heritage.^{Footnote 131}

In September 2007, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) codified international Indigenous rights.^{Footnote 132} It addressed concerns related to territory, sovereignty, cultural heritage, and the freedom to observe traditional religious/ceremonial rituals.^{Footnote 133} This declaration was initially rejected by the United States, Canada, New Zealand, and Australia. All four countries eventually signed on, but their initial reluctance is interesting when one considers their Indigenous populations and their contentious past in dealing with Indigenous rights.^{Footnote 134} In some ways, the doctrine is an empty promise of rights since the UN has no ability to enforce the contents of the declaration, and it must be implemented on the national or local level, something that is not always guaranteed to happen. But a promising factor is the inclusion of Article 12, which was inspired by NAGPRA:

UNDRIP can be viewed as a promotion of an ethical agenda or, as Duane Champagne calls it, the establishment of a “moral high ground.”^{Footnote 135} Because UNDRIP relies on implementation through inclusion in the nation-state’s policies and governing institutions, diplomats and activists have started to work on embedding UNDRIP into nation-state laws.^{Footnote 136} They hope to increase the application of UNDRIP to implement Indigenous rights on the national level. The doctrine can be viewed as a foundational declaration and platform for Indigenous concerns and could potentially influence both domestic and international repatriation claims, and the inclusion of some formalization of cultural property indigenism may help address Indigenous injustices. The UN continues to highlight Indigenous cultural property concerns, including the 2014 World Conference on Indigenous Peoples. Among the statements on language related to repatriation from the conference is the following:

With globalization and the increased focus on international Indigenous rights, aid has been sought through international governing bodies, appealing to human rights doctrines and the development of doctrines with language specifically addressing Indigenous needs. Repatriation policies have seen a discursive shift from a domestic issue for the nation-state to the international level. There has also been cooperation between institutions and nations, but not a set policy of international agreements.

UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP) argues for inventories of museum collections to be made. The inventories help prompt museums to understand the provenance of their collections and to review policies concerned with acquisition and possible repatriation.^{Footnote 138} It would be interesting to conceive of a large-scale searchable database much like what is used by NAGPRA. The ICPRCP is also involved in cultural property disputes, but it does not speak specifically to Indigenous peoples’ claims.^{Footnote 139} Indigenous peoples, organizations, and advocates have worked to develop international awareness of their issues. But, unfortunately, there are no universally binding international treaties that relate to Indigenous cultural property. Instead, international repatriations are based on state relationships, and nation-states have a vested interest in their national identity.

Although UNESCO works to address the concerns of the international community, it does not necessarily succeed without national help in enforcement. National laws can make it very difficult to repatriate cultural property. For instance, a law in France, the French Heritage Code, “declares public cultural property under certain circumstances inalienable, which renders them out of reach for repatriation.”^{Footnote 140} This led to a legal dispute for cultural property in 2013 when the Annenberg Foundation bought 24 sacred Native American masks from Eve Auctioneers in Paris. This was done since the auction house refused to take them off the market, despite calls from Hopi and Apache representatives to do so. The Annenberg Foundation returned them to the Hopi and Apache tribes after the purchase.^{Footnote 141}

NAGPRA AS A FORMALIZATION TEMPLATE

Global norm shifts are based on a network of changes happening on the nation-state level throughout the world.^{Footnote 142} These norms create a power structure that is working to achieve more rights for Indigenous peoples. With that in mind, the NAGPRA online databases used in the United States could be considered a template for possible future changes. These databases are broken down into searchable subtopics available to museum staff, Indigenous communities, and the public to indicate what is catalogued in museum collections and what has been returned and to whom.^{Footnote 143} This structure could be rescaled and incorporated into an international ethical policy to encourage more cooperation with Indigenous repatriation requests. Given that there are numerous sovereign Indigenous peoples with different practices and needs throughout the world, I propose that the development of a theoretical framework of networks based around NAGPRA and other successful national policies could be merged to meet their diverse needs. This would require continued work on the national legislation and policy level, followed by an inclusion into an international system, possibly under the umbrella of the UN since it is an intergovernmental group that operates based on the cooperation of nation-states. The revision of the present ownership paradigm (cultural property nationalism/cultural property internationalism) to include a cultural property indigenism component would also aid in this system. Naming and quantifying this type of ownership would make the concept more easily understood by others as something that is a necessity—interpreting it as a rights issue for marginalized Indigenous peoples. This ownership paradigm would bring the theoretical concept to an already existing template. It is a way of naming what is already happening in the United States with NAGPRA policy for an international audience.