By Brian I. Daniels

Emergent Conversation 21

This essay is part of the series Cultural Rights are Human Rights: Decolonizing Museums through Repatriation and Source Community Partnerships, PoLAR Online Emergent Conversation 21.

Recent museum practice has considered the repatriation of Indigenous ancestors and belongings as an important mechanism for advancing cultural rights and achieving restorative justice. Emergent collaborative partnerships realized through repatriation are often credited with transforming the relationships between anthropology and Indigenous communities and contributing to richer and more nuanced representations and interpretation (e.g., Laluk et al. 2022). While not discounting these advancements, concerns remain, especially in the United States, about legal barriers to repatriation and the role that museums might play in supporting Native American tribes.

The foundational principle of cultural rights, namely, that “[e]veryone has the right freely to participate in the cultural life of the community,” is found in Article 27(1) of the U.N. Universal Declaration of Human Rights (United Nations 1948). This right is further complemented by Article 22 of the Declaration, which recognizes “the right to . . . the economic, social and cultural rights indispensable for . . . dignity and the free development of . . . personality.” Although adopted in 1948, a cultural rights framework developed haphazardly in comparison with other global human rights norms over the twentieth century, with lingering questions about whether cultural rights were as urgent as rights to life and liberty (Meskell 2009), what kinds of culture are valued in the public sphere (Taylor 1992), and what entities can bear a right to culture (Daniels 2010). In these discussions, human and cultural rights seem constrained to a legal register, but museums have been increasingly embroiled in these esoteric conversations. On the one hand, global museums represent the artistic, cultural, and scientific life of a community and promote education. On the other hand, they are implicated in the dispossession of ancestors and belongings from Indigenous communities, colonized countries, and victims of genocide. Today, in the twenty-first century, museums are experiencing the reckoning of inhabiting this Janus-faced position.

For Indigenous peoples, cultural rights, repatriation, and community status are addressed within the framework provided by the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP; United Nations 2007). The UNDRIP was adopted in 2007 by 144 countries, with four countries voting against it (United States, Australia, New Zealand, and Canada) and eleven countries abstaining (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and Ukraine). Among settler states, the United States, New Zealand, Australia, Canada, Colombia, and Samoa have since formally stated their support of the UNDRIP (Keeler 2012: 708). The UNDRIP is unequivocal that “Indigenous peoples have the right to self-determination” (Article 3), and that, in exercising a right to self-determination, Indigenous peoples “have the right to autonomy or self-government in matters relating to their internal and local affairs” (Article 4). The UNDRIP is also specific on the issues of repatriation. Article 12(2) provides that “[s]tates shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.” Indigenous peoples may therefore make the reasonable cultural rights-based claim that free participation in cultural life requires the return and repossession of belongings and ancestors. In so doing, they also call upon an important implicit argument: that they, as Indigenous peoples, hold inherent self-determination and sufficient sovereignty to make a request for return and repossession of their cultural heritage.

In the United States, the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) establishes a legal framework for the return of human remains, funerary objects, sacred objects, and objects of cultural patrimony. NAGPRA requires federal agencies as well as federally funded museums, cultural organizations, and educational institutions to inventory Native American human remains and associated funerary objects in their possession, to create summaries of their Native American sacred objects and objects of cultural patrimony in their possession, and to notify tribes of their holdings. Repatriations are made, in the first instance, to lineal descendants, and then to the appropriate Native American tribe or Native Hawaiian organization. In the case of sacred objects and objects of cultural patrimony, the party seeking repatriation—whether a lineal descendant, Native American tribe, or Native Hawaiian organization—must present evidence “which . . . would support a finding that the Federal agency or museum did not have the right of possession” (25 U.S.C. 3005(c)). Thus, repatriation is not automatic. Instead, it requires considerable documentation of ancestors and belongings in museum holdings (which were often not completed historically) as well as the administrative staff and resource infrastructure within a Native American tribal government to file a substantive and defensible repatriation claim.

The technical requirements are not the sole barrier to repatriation. To be eligible for repatriation of ancestors and belongings under NAGPRA, Native American tribes must be enumerated on a list prepared by the Bureau of Indian Affairs under the Federally Recognized Indian Tribe List Act of 1994. Only 574 Native American tribes were so listed in 2023 (88 Fed. Reg. 2112). Distinctions between federally recognized and federally unrecognized tribes are known to be notoriously arbitrary (Miller 2003; Miller 2004). Despite these idiosyncratic and often heartrending histories, the outcomes act as an absolute barrier to the fulfilment of tribal citizens’ cultural rights. Although an administrative process exists for tribes to petition for placement on the recognized list, the application process itself is known to take years (Tolley 2006; Klopotek 2011). The Bureau of Indian Affairs estimates an administrative petition’s cost at $2.1 million (86 Fed. Reg. 55857). This financial burden poses a great hurdle for many tribes, who do not have the necessary monetary resources due to the same social, economic, and political dispossessions that have marginalized them from the annual list in the first place. Even then, structural challenges in the criteria for listing and gaps in documentary and corroborating evidence may keep tribes from federal acknowledgement. From the point of view of repatriation and Indigenous rights, while federally unrecognized tribes organize as self-determined entities, they lack sufficient sovereignty under U.S. law to realize their Article 12(2) rights for “access and/or repatriation of ceremonial objects and human remains” under the UNDRIP.

NAGPRA has specific legal mechanics that are premised upon certain possessory rights. Generally, if sacred objects and objects of cultural patrimony have been wrongly alienated or stolen from an individual or a tribe, then good title could not have been passed to the present holder in the United States. Many sacred objects and objects of cultural patrimony were collectively owned by a tribe or clan, and present-day federally recognized tribes are well positioned to make a claim of collective ownership on their own or as legal successors. Repatriation is therefore inextricably linked with sovereignty, and the ability to assert sovereign rights, as much as it is tied to the realization of cultural rights. Federally recognized tribes stand to gain by this arrangement. According the right of repatriation to federally recognized tribes alone accrues specific rights to a tribal sovereign, and, in this way, strengthens tribal sovereignty in U.S. law. These benefits to tribal sovereignty, however, widen the already yawning gap between federally recognized and federally unrecognized tribes. Here, NAGPRA reinforces a double dispossession for unrecognized tribes: dispossession from the legal status as a federally recognized tribe and dispossession from ancestors and belongings necessary for full participation in the tribe’s cultural life.

How should museums respond? Surely, they can serve as allies in supporting changes to U.S. laws and regulations that support federally unrecognized tribes in the administrative process for acknowledgement. However, that support is inadequate if the motivation for repatriation is to address past injustices committed against Indigenous peoples (Breske 2018) or to be representative of self-determination (Glass 2004). Instead there is a need to break out of object-oriented epistemological frameworks that prioritize the stewardship of objects, their disposition, and the relationships that develop from repatriation. More reparative actions can be taken. Museums need to consider the context of dispossession in its totality. It is not enough to repatriate and to create goodwill; the question is whether a Native American tribe is legally empowered and structurally able to make the request for a repatriation from the museum. If the answer to this question is in the negative, then the issue becomes how the museum can play a constructive role in working with a tribe to realize its sovereign recognition. While repatriation has become a legal and ethical presumption within museum practice, focusing on the fate of objects alone misses the ways that Native American tribes have been dispossessed. An inability to make a repatriation request is perhaps its most visible museological symptom.

As institutions, museums represent a curious irony regarding dispossession. Their collections of ancestors and belongings are the physical manifestation of settler violence and the taking of tribal cultural heritage. Yet, records connected to objects and their acquisition may provide compelling evidence for the maintenance of cultural life, the continuity of traditional values and language, and political and economic activity by a tribe. Moreover, a museum staff may have the knowledge to navigate these specialized archival records and to interpret them as primary evidence for the expert identification of a tribe, the distinctiveness of its community, and the presence of tribal leaders. Museums are among the few organizations to maintain staff with such valuable expertise. Whether museums will prioritize the work of repair needed to address dispossession holistically, including the structural obstacles preventing all Native American tribes from participating in repatriation, remains an open question. Many museums may not see it as their task to assist Native American tribes in achieving self-determination. Others may view it as beyond their mission. Nonetheless, if we understand that repatriation will be a focus of twenty-first century museum practice, then it follows that museums will need to find ways to support those federally unrecognized Native American tribes that are otherwise prevented from participating in repatriation.

Although intended to return ancestors and belongings to Native American tribes in the United States, NAGPRA has been influential in repatriation efforts to Indigenous peoples globally (Keeler 2012: 769). Restrictions on who can participate in repatriation under the law demand more on the part of museums than returning collections in their care. These impediments serve as a reminder that repatriation means not only taking cultural rights seriously, but taking Indigenous sovereignty seriously. In years ahead, even as museums grapple with how to address cultural claims for return, they will also need to reimagine how they can best position themselves as supporters for federal recognition.

Dr. Brian I. Daniels is director of research and programs for the Penn Cultural Heritage Center at the University of Pennsylvania Museum, adjunct assistant professor in the University of Pennsylvania anthropology graduate group, visiting professor in the Sustainable Cultural Heritage Graduate Program at the American University of Rome, and research associate at the Smithsonian Institution. His research centers around three concerns: (1) conflict, cultural loss, and human rights violations; (2) community-based approaches to cultural heritage preservation; and (3) indigenous rights and recognition. Currently, Dr. Daniels leads the National Science Foundation-supported Conflict Culture Research Network, a group of scholars at fifteen international universities and research organizations focused on the study of intentional cultural destruction. He has received the Society for American Archaeology’s Presidential Recognition Award for his efforts to protect Syrian and Iraqi cultural heritage and the Lynn Reyer Award in Tribal Community Development from the Society for the Preservation of American Indian Culture for his work with the Shasta Indian communities of northern California. He previously served as the manager of the National Endowment for the Humanities regional center initiative at San Francisco State University, where he worked on strategies for public engagement and the digital humanities.

Acknowledgements

The research for this essay received financial support from the Mellon Foundation Just Futures Initiative grant N-2009-09221 entitled “Dispossessions in the Americas: The Extraction of Bodies, Land, and Heritage from la Conquista to the Present,” administered by the University of Pennsylvania, coordinated by Principal Investigator Tulia G. Falleti, and with co-principal investigators Margaret Bruchac, Ricardo Castillo-Neyra, Ann Farnsworth-Alvear, Michael Hanchard, Jonathan D. Katz, Richard M. Leventhal, and Michael Z. Levy.

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