14.00 A Jurisprudence of Rights: Indigeneity, Cultural Heritage, and United States Archaeology
Beginning with the 1906 Antiquities Act, the United States government regulated the nation’s cultural past as steward on behalf of all Americans. Indigenous culture, tradition, and law were not recognized and “archaeological resources”—including Native human remains and grave sites—remained federally-owned property until the 1990 Native American Graves Protection and Repatriation Act (NAGPRA).
Premised on “cultural affiliation,” NAGPRA granted, to specific “federally-recognized” indigenous peoples/groups, standing to claim certain material remains of their past. In the making of NAGPRA, recognition of indigenous sovereignty, tribal governance, and legal-historical marginalization and past injustices (including denial of civil liberties, citizenship, and religious freedom) figured prominently. Many thus considered it to be a civil rights triumph and human rights legislation. However, since enactment, contentious litigation and controversy have burgeoned. Most recently, NAGPRA’s implementing regulation on “culturally unidentifiable human remains” has reinvigorated dissonance. Nevertheless, scholars have yet to examine in full how NAGPRA has reinforced, and at times exacerbated, the structural inequalities and power imbalances it was enacted to redress. Nor has scholarship adequately addressed the enduring authoritative role of the United States federal government, the implications for indigenous governance of presenting “oral traditional” evidence in court, or the disparate rights accorded to Native Americans depending on ‘“federal recognition” status. This paper will address these issues. In doing so, it will appraise the role of indigeneity in United States archaeology by focusing on issues of cultural property rights, title, standing, evidentiary standards, burdens of proof, and jurisdiction.