Justifying Repatriation of Native American Cultural Property

Indiana Law Journal

Volumn 72, Issue 3, 1997, Pages 650-773

  Harding, Sarah ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 1842741093     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (265)

1. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
2. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
3. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
4. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
5. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
6. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
7. See, e.g., Mary V. Chandler, Building a Sacred Trust: Strengthened by New Federal Laws Governing Museum Artifacts, Native Americans Reclaim Their Heritage, ROCKY MOUNTAIN NEWS, May 29, 1994, at 56A, available in 1994 WL 6701562; Eric Gibson, Giving It Back to the Indians: In Quiet Revolt, Museum Pieces May Be Repatriated, WASH. TIMES, May 15, 1991, at E1, available in 1991 WL 5562308; Marsha King, Returning a Heritage - A Federal Law Has Changed the Way Museums View Their Mission as Caretakers of Culture, SEATTLE TIMES, Dec. 6, 1992, at K1; Museum Set to Lose Indian Treasure, N.Y. TIMES, Feb. 19, 1993, at A12 (The Oglala Sioux in South Dakota have claimed the entire collection of a small museum in Barre, Massachusetts. The objects have been traced to the massacre at Wounded Knee.); A Sacred Trust: Museums Returning Disputed Art Objects, DENVER POST, May 30, 1995, at D-08, available in 1995 WL 6574402; Skeletons in Museum Closets, ATLANTA J. & CONST., Jan. 2, 1992, at A12, available in 1992 WL 4562567; Charles Storch, At Peace with the Past: Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1, available in 1993 WL 11124090.
8. Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C. §§ 3001-3013 (1994).
9. Id. § 3001(3)(D). Throughout the paper, "cultural patrimony" and "cultural property" will be used interchangeably. Since the phrase "cultural items," as used in § 3001(3) of NAGPRA, refers to a much larger group of objects, including human remains, it will only be used in connection with NAGPRA and its definition therein.
10. Rebecca Clements, Misconceptions of Culture: Native Peoples and Cultural Property Under Canadian Law, 49 U. TORONTO FAC. L. REV. 8 (1991).
11. Id. at 1, 8.
12. Although the importance of an object may lead to a determination of tribal ownership, it cannot be said that a clear indication of tribal ownership carries with it an assumption of importance; not all tribally owned objects have the requisite amount of ongoing tribal significance. See, e.g., Ernest Beaglehole, Ownership and Inheritance in an American Indian Tribe, 20 IOWA L. REV. 304, 305-11 (1934) (discussing individual and group ownership of property amongst the Hopi). There seems to be some dispute regarding ownership patterns in traditional Native American society. Some commentators argue that almost all property was owned by the tribe thus prohibiting any individual transfers. See S. REP. NO. 101-473, at 7 (1990) (expressing concern about the definition of cultural patrimony given that "no object could be conveyed by an individual because it was owned by the collective whole"); FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 605-06 (Rennard Strickland et al. eds., Michie Co. 1982) (1942) [hereinafter COHEN]. Others have concluded that many Indian tribes had a "well developed legal system that emphasized individual rights and individual ownership." Beaglehole, supra, at 305-08 (discussing goods which were considered personal rather than communal property amongst the Hopi); Bruce L. Benson, Customary Indian Law: Two Case Studies, in PROPERTY RIGHTS AND INDIAN ECONOMIES 27 (Terry L. Anderson ed., 1992).
13. Although the importance of an object may lead to a determination of tribal ownership, it cannot be said that a clear indication of tribal ownership carries with it an assumption of importance; not all tribally owned objects have the requisite amount of ongoing tribal significance. See, e.g., Ernest Beaglehole, Ownership and Inheritance in an American Indian Tribe, 20 IOWA L. REV. 304, 305-11 (1934) (discussing individual and group ownership of property amongst the Hopi). There seems to be some dispute regarding ownership patterns in traditional Native American society. Some commentators argue that almost all property was owned by the tribe thus prohibiting any individual transfers. See S. REP. NO. 101-473, at 7 (1990) (expressing concern about the definition of cultural patrimony given that "no object could be conveyed by an individual because it was owned by the collective whole"); FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 605-06 (Rennard Strickland et al. eds., Michie Co. 1982) (1942) [hereinafter COHEN]. Others have concluded that many Indian tribes had a "well developed legal system that emphasized individual rights and individual ownership." Beaglehole, supra, at 305-08 (discussing goods which were considered personal rather than communal property amongst the Hopi); Bruce L. Benson, Customary Indian Law: Two Case Studies, in PROPERTY RIGHTS AND INDIAN ECONOMIES 27 (Terry L. Anderson ed., 1992).
14. Although the importance of an object may lead to a determination of tribal ownership, it cannot be said that a clear indication of tribal ownership carries with it an assumption of importance; not all tribally owned objects have the requisite amount of ongoing tribal significance. See, e.g., Ernest Beaglehole, Ownership and Inheritance in an American Indian Tribe, 20 IOWA L. REV. 304, 305-11 (1934) (discussing individual and group ownership of property amongst the Hopi). There seems to be some dispute regarding ownership patterns in traditional Native American society. Some commentators argue that almost all property was owned by the tribe thus prohibiting any individual transfers. See S. REP. NO. 101-473, at 7 (1990) (expressing concern about the definition of cultural patrimony given that "no object could be conveyed by an individual because it was owned by the collective whole"); FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 605-06 (Rennard Strickland et al. eds., Michie Co. 1982) (1942) [hereinafter COHEN]. Others have concluded that many Indian tribes had a "well developed legal system that emphasized individual rights and individual ownership." Beaglehole, supra, at 305-08 (discussing goods which were considered personal rather than communal property amongst the Hopi); Bruce L. Benson, Customary Indian Law: Two Case Studies, in PROPERTY RIGHTS AND INDIAN ECONOMIES 27 (Terry L. Anderson ed., 1992).
15. I should mention one last approach here that I do not intend to explore further in this Article. The ownership of cultural property may actually be a cultural right, not unlike a right to speak a certain language or practice a religion. As a cultural right, non-Native Americans would be held under a duty to return cultural property to its original Native American owners, regardless of any intervening interest. The foundation for such a right might be a broader right to membership in a cultural group and cultural survival, requisite elements of individual flourishing. In short, Native American cultural patrimony may be an important external manifestation of Native American culture and as such is essential for cultural survival and the flourishing of a Native American identity. Cultural property may, in this sense, be considered what Denise Reaume has labeled a "participatory good." Denise Reaume, Individuals, Groups, and Rights to Public Goods, 38 U. TORONTO L.J. 1, 10 (1988). "Participatory goods" are those that "involve activities that not only require many in order to produce the good but are valuable only because of the joint involvement of many. Production itself is part of what is valued - the good is the participation." Id. Although most rights are individualized both because of the nature of a right and the types of goods being secured by such rights, Reaume suggests that there may be a group right to participatory goods: In such cases, the right cannot be an individual one because it is a claim to a participatory good, and it is a group right because it is a claim to a public good which applies only to a segment of society and must be claimed as against the rest. Id. at 24.
16. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
17. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
18. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
19. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
20. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
21. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
22. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
23. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
24. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
25. See, e.g., Walter R. Echo-Hawk, Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441-51 (1986) (detailing the development of the law relating to Indians and museum treasures); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 586-641 (1995) (discussing the current treatment under both common and statutory law of all cultural property in the United States); Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 525-49 (arguing that the common law doctrines concerning personal property are not adequately suited to the Native American situation and detailing the various statutory schemes for protecting Native American objects); Symposium, The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation Related Legislation, 24 ARIZONA ST. L.J. 1 (1992). There is also a steadily increasing body of literature on the international movement of cultural property. See, e.g., John E. Bersin, The Protection of Cultural Property and the Promotion of International Trade in Art, 13 N.Y.L. SCH. J. INT'L & COMP. L. 125 (1992); Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 INT'L LAW. 755 (1987) (analyzing the various international treaties and conventions dealing with cultural property); Lawrence M. Kaye, The Future of the Past: Recovering Cultural Property, 4 CARDOZO J. INT'L & COMP. L. 23 (1996); Mark F. Lindsay, The Recovery of Cultural Artifacts: The Legacy of Our Archaeological Heritage, 22 CASE W. RES. J. INT'L L. 164 (1990); Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 FORDHAM INT'L. L.J. 1033 (1992-93); M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. RES. J. INT'L. L 435 (1994).
26. Rennard Strickland, Implementing the National Policy of Understanding, Preserving, and Safeguarding the Heritage of Indian Peoples and Native Hawaiians: Human Rights, Sacred Objects, and Cultural Patrimony, 24 ARIZ. ST. L.J. 175, 179-81 (1992).
27. Two of the largest repatriations are Stanford University's return of 550 Ohlone Indians for reburial in 1989, see Anne C. Roark, Stanford Agrees to Return Indian Skeletal Remains, L.A. TIMES, June 22, 1989, at 1, and the University of Minnesota's return of 1000 American Indian skulls and bones, see Patrick Sweeney, Indians Win Battle to Bury Ancestors, ST. PAUL PIONEER PRESS DISPATCH, July 16, 1989, at 1B. As of 1992, the Smithsonian, which is governed by separate legislation, the National Museum of the American Indian Act of 1989, 20 U.S.C. §§ 80q to 80q-15 (1994), had completed six requests for repatriation and had over 50 requests on file. Of the six completed cases, five concerned human remains and one involved sacred objects of the Zuni Tribe. Thomas W. Killion et al., Repatriation at the Smithsonian 3 (Repatriation Office, Smithsonian Institution 1992).
28. Two of the largest repatriations are Stanford University's return of 550 Ohlone Indians for reburial in 1989, see Anne C. Roark, Stanford Agrees to Return Indian Skeletal Remains, L.A. TIMES, June 22, 1989, at 1, and the University of Minnesota's return of 1000 American Indian skulls and bones, see Patrick Sweeney, Indians Win Battle to Bury Ancestors, ST. PAUL PIONEER PRESS DISPATCH, July 16, 1989, at 1B. As of 1992, the Smithsonian, which is governed by separate legislation, the National Museum of the American Indian Act of 1989, 20 U.S.C. §§ 80q to 80q-15 (1994), had completed six requests for repatriation and had over 50 requests on file. Of the six completed cases, five concerned human remains and one involved sacred objects of the Zuni Tribe. Thomas W. Killion et al., Repatriation at the Smithsonian 3 (Repatriation Office, Smithsonian Institution 1992).
29. See 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, 42-45 (1992); see also Native American Grave and Burial Protection Act (Repatriation), Native American Repatriation of Cultural Patrimony Act, and Heard Museum Report: Hearing on S. 1021 and S. 1980 Before the Senate Select Committee on Indian Affairs, 101st Cong., 193 (1990) [hereinafter Senate Hearings] (statement of Walter R. Echo-Hawk, staff attorney for the Native American Right Fund, quoting historian Cole: "'In retrospect it is clear that the goods flowed irrevocably from native hands to Euro-American ones until little was left in possession of the people who had invented, made, and used them.'").
30. The Surgeon General's Order of 1868 as reproduced in ROBERT E. BIEDER, A BRIEF HISTORICAL SURVEY OF THE EXPROPRIATION OF AMERICAN INDIAN REMAINS 36-37 (1990), available in Senate Hearings, supra note 11, at 278-362.
31. With respect to cultural objects, see, for example, Onondaga Nation v. Thacher, 61 N.Y.S. 1027 (Sup. Ct. 1899), aff'd, 62 N.E. 1098 (N.Y. 1901) (rejecting Onondaga Nation's claim of ownership to four wampum belts). The return of the wampum belts was eventually negotiated, 75 years later. See Trope & Echo-Hawk, supra note 11, at 43 n.30. With respect to human remains and burial grounds see Wana the Bear v. Community Const., Inc., 180 Cal. Rptr. 423 (Ct. App. 1982). See also Trope & Echo-Hawk, supra note 11, at 45-47. But see Charrier v. Bell, 496 So. 2d 601 (La. Ct. App. 1986).
32. Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa-mm (1994); see also Echo-Hawk, supra note 8, at 448-51. The discovery of remains or artifacts on private or state lands is covered by state legislation, where it exists, and the common law. H. MARCUS PRICE III, DISPUTING THE DEAD: U.S. LAW ON ABORIGINAL REMAINS AND GRAVE GOODS 122-25 (appendix) (1991); Echo-Hawk, supra note 8, at 52-54;
33. Catherine Bergin Yalung & Laurel I. Wala, A Survey of State Repatriation and Burial Protection Statutes, 24 ARIZ. ST. L.J. 419 (1992).
34. 20 U.S.C. §§ 80q to 80q-15 (1994). The Smithsonian has subsequently established a repatriation office to deal with inventories and requests.
35. 25 U.S.C. §§ 3001-3013 (1994).
36. "Cultural items" are defined as "associated funerary objects," "unassociated funerary objects," "sacred objects," and "cultural patrimony." Id. § 3001(3).
37. Id. § 3002.
38. "Museum" is defined as "any institution or State or local government agency . . . that receives Federal funds and has possession of, or control over, Native American cultural items." Id. § 3001(8).
39. Id. § 3003 (addressing inventory of human remains and associated funerary objects) and § 3004 (giving a summary of unassociated funerary objects, sacred objects, and cultural patrimony).
40. Id. § 3001(2). The definition of "tribe" includes Indian aggregations which are not federally recognized as Indian tribes. Id. § 3001(7); see also Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D. Vt. 1992) (Abenaki Nation is not a federally-recognized Indian Tribe under the National Historic Preservation Act, but nonetheless falls within the NAGPRA definition of "tribe.").
41. 25 U.S.C. § 3005(a).
42. Id. § 3005(c).
43. Id. § 3001(13) (emphasis added).
44. Id. § 3001(3)(D) (emphasis added); see also Native American Graves Protection and Repatriation Act Regulations, 43 C.F.R. § 10 (1996).
45. See Trope & Echo-Hawk, supra note 11, at 66.
46. See, e.g., H.R. REP. NO. 101-877, at 12 (1990), reprinted in 1990 U.S.C.C.A.N. 4367, 4371; id. at 25-29 (letter from Bruce C. Navarro, Deputy Assistant Attorney General, of the Department of Justice, Office of Legislative Affairs).
47. Trope & Echo-Hawk, supra note 11, at 66.
48. S. REP. NO. 101-473, at 7-8 (1990); see infra text accompanying notes 56-61 for a discussion of a New York case concerning wampum belts; see also 43 C.F.R. § 10. For a discussion of the Zuni war gods, see Echo-Hawk, supra note 8, at 444.
49. Deborah L. Nichols et al., Ancestral Sites, Shrines, and Graves: Native American Perspectives on the Ethics of Collecting Cultural Properties, in THE ETHICS OF COLLECTING CULTURAL PROPERTY: WHOSE CULTURE? WHOSE PROPERTY? 27, 27-29 (Phyllis Mauch Messenger ed., 1989) [hereinafter THE ETHICS OF COLLECTING]. Native American objects and remains are still regularly subject to theft, destruction, and desecration. See Antonia M. De Meo, More Effective Protection for Native American Cultural Property Through Regulation of Export, 19 AM. INDIAN L. REV. 1, 8-10 (1994) (noting how the increased value of Native American artifacts has led to a rise in the frequency of looting and destruction); The Struggle to Protect Indian Graves, N.Y. TIMES, Mar. 26, 1995, at A16.
50. Deborah L. Nichols et al., Ancestral Sites, Shrines, and Graves: Native American Perspectives on the Ethics of Collecting Cultural Properties, in THE ETHICS OF COLLECTING CULTURAL PROPERTY: WHOSE CULTURE? WHOSE PROPERTY? 27, 27-29 (Phyllis Mauch Messenger ed., 1989) [hereinafter THE ETHICS OF COLLECTING]. Native American objects and remains are still regularly subject to theft, destruction, and desecration. See Antonia M. De Meo, More Effective Protection for Native American Cultural Property Through Regulation of Export, 19 AM. INDIAN L. REV. 1, 8-10 (1994) (noting how the increased value of Native American artifacts has led to a rise in the frequency of looting and destruction); The Struggle to Protect Indian Graves, N.Y. TIMES, Mar. 26, 1995, at A16.
51. Deborah L. Nichols et al., Ancestral Sites, Shrines, and Graves: Native American Perspectives on the Ethics of Collecting Cultural Properties, in THE ETHICS OF COLLECTING CULTURAL PROPERTY: WHOSE CULTURE? WHOSE PROPERTY? 27, 27-29 (Phyllis Mauch Messenger ed., 1989) [hereinafter THE ETHICS OF COLLECTING]. Native American objects and remains are still regularly subject to theft, destruction, and desecration. See Antonia M. De Meo, More Effective Protection for Native American Cultural Property Through Regulation of Export, 19 AM. INDIAN L. REV. 1, 8-10 (1994) (noting how the increased value of Native American artifacts has led to a rise in the frequency of looting and destruction); The Struggle to Protect Indian Graves, N.Y. TIMES, Mar. 26, 1995, at A16.
52. Bowen Blair, Indian Rights: Native Americans Versus America Museums - A Battle for Artifacts, 7 AM. INDIAN L. REV. 125, 127 (1979) (The wampum are said to be not only religious and historical documents, but also representations of current existence.).
53. Onondaga Nation v. Thacher, 189 U.S. 306, 307 (1903); see also Onondaga Nation v. Thacher, 61 N.Y.S. 1027, 1028 (1899) (discussing the purpose of the wampum belts).
54. Trope & Echo-Hawk, supra note 11, at 43.
55. See, e.g., Senate Hearings, supra note 11, at 61-64 (statement of Tom Livesay, Director, Museum of New Mexico, on behalf of the American Association of Museums, arguing that housing these objects in museums serves an educational purpose); H.R. REP. NO. 101-877, at 13 (1990), reprinted in 1990 U.S.C.C.A.N. at 4372 ("Testimony from the museum community stressed the responsibilities which museums have to maintain their collections and concern for liability surrounding repatriation.").
56. Vicki Quade, Who Owns the Past? An Interview with Walter Echo-Hawk, 16 HUM. RTS., Winter 1989, at 24, 28.
57. The "right of possession" defense is a statutory creation, but it provides for the application of property law if the normal operation of the defense results in a Fifth Amendment taking. 25 U.S.C. § 3001(13) (1994).
58. See Ellen Herscher, International Control Efforts: Are There Any Good Solutions?, in THE ETHICS OF COLLECTING, supra note 30, at 117, 117-18.
59. See Nichols et al., supra note 30, at 32-33. The authors tell a particularly troubling story about the Box S site in New Mexico. The Box S site is a 473 room pueblo dating to the mid and late thirteenth century. It is situated partly on a Zuni reservation and partly on private lands, and the Zuni regard it as an ancestral site. In 1982, the private property was sold to developers who started tearing up the site with a back hoe. The Zunis attempted to stop them by challenging the developers' title to the land in question. The Zunis lost the battle and the right to stop the destruction of their ancestral site. The destruction continued and the objects that were unearthed were sold on the antiquities market.
60. Patty Gerstenblith, The Adverse Possession of Personal Property, 37 BUFF. L. REV. 119, 120 (1988/89); see also R.H. Helmholz, Adverse Possession and Subjective Intent, 61 WASH. U. L.Q. 331 (1983) (arguing that there is additionally a subjective element in adverse possession that looks to the possessor's state of mind).
61. Patty Gerstenblith, The Adverse Possession of Personal Property, 37 BUFF. L. REV. 119, 120 (1988/89); see also R.H. Helmholz, Adverse Possession and Subjective Intent, 61 WASH. U. L.Q. 331 (1983) (arguing that there is additionally a subjective element in adverse possession that looks to the possessor's state of mind).
62. See Gerstenblith, supra note 39, at 120-23.
63. Id. at 121-22 n.10.
64. Id. at 124-25, 130-31.
65. See, e.g., Burroughs Adding Mach. Co. v. Bivens-Corhn Co., 119 P.2d 58, 59 (Okla. 1941) (holding that when property is held "open and notoriously" for more than the statute of limitations period from the date of the wrongful taking, then the right of action by the owner is barred); Gatlin v. Vaut, 91 S.W. 38, 40 (Indian Terr. 1905) (holding that the statute of limitation does not run until property is held in a notorious and open fashion so that the owner has a reasonable chance of asserting his title and an opportunity of knowing its whereabouts).
66. Hammond v. Halsey, 336 S.E.2d 495, 497 (S.C. Ct. App. 1985) (holding that the original owner of a Spanish cannon barrel transferred physical possession to an antiquities society and thus the burden was on his estate to prove superior title).
67. See, e.g., Gatlin, 91 S.W. at 38, 40 (In Gatlin, two mules were stolen from Indian territory, taken to Texas, and sold to a bona fide purchaser. In a claim for repossession, the court held that the bona fide purchaser could not tack on the thief's ownership to satisfy the limitation period because, by removing the mules from the Territory, the thief had prevented the limitation period from running.).
68. John Henry Merryman, Thinking About the Elgin Marbles, 83 MICH. L. REV. 1880, 1911 (1985).
69. 405 A.2d 840, 844-45 (N.J. Super. Ct. App. Div. 1979), rev'd and remanded, 416 A.2d 862 (1980). The issue of whether O'Keeffe used due diligence in searching for three small paintings that were stolen in 1946 was submitted for retrial. Before retrial, O'Keeffe and Snyder settled the matter by dividing the paintings in question.
70. Id. at 844-45; see also DeWeerth v. Baldinger, 836 F.2d 103 (2d Ch. 1987) (holding that an original owner's attempt to recover an oil painting by Claude Monet was barred because she failed to exercise due diligence in looking for it); Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp. 1374, 1389-91 (S.D. Ind. 1989), aff'd, 917 F.2d 278, 288-90 (7th Cir. 1990) (The Republic of Cyprus and Church of Cyprus successfully recovered four Byzantine mosaics from an Indiana art dealer after proving that they had diligently searched for the mosaics even though they did not do everything they could have done in locating them.).
71. O'Keeffe, 405 A.2d at 845.
72. 253 N.Y.S.2d 43, 44 (N.Y. App. Div. 1964), on remand, 267 N.Y.S.2d 804 (N.Y. Sup. Ct. 1966).
73. Id. at 44. But see DeWeerth, 836 F.2d at 107 ("Where demand and refusal are necessary to start a limitations period, the demand may not be unreasonably delayed.").
74. See Wilcox v. St. Mary's Univ., Inc., 497 S.W.2d 782, 784 (Tex. Ct. App. 1973) (The University spent more than $40,000 to care for documents that it mistakenly thought were gifts.).
75. See Bailey v. Glover, 88 U.S. (21 Wall.) 342, 345 (1874).
76. S. REP. NO. 101-473, at 4 (1990) ("[I]n cases where Native Americans have attempted to regain items that were inappropriately alienated from their tribes, they have met with resistance from museums and have lacked the legal ability of [sic] financial resources to pursue the return of the items.").
77. See, e.g., United States v. Jim, 409 U.S. 80, 82 (1972) (holding whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members); Journeycake v. Cherokee Nation, 28 Ct. Cl. 281, 302 (1893), aff'd, 155 U.S. 196, 208-10 (1894) (recognizing Cherokee Nation land as "public domain" or "common property" of the Cherokee); Seneca Nation of Indians v. Hammond, 3 Thomp. & C. 347, 348-49 (N.Y. Sup. Ct. 1874) (holding that an individual Indian could not sell hemlock bark because the title rested with the Seneca Nation as a whole).
78. Onondaga Nation v. Thacher, 61 N.Y.S. 1027, 1032 (1899).
79. The other four members of the Five Nations were the Oneidas, Mohawks, Senecas, and Cayugas. The Five Nations became the Six Nations with the addition of the Tuscaroras and, throughout the decision, the court referred to both leagues as the original owners of the wampum. Id. at 1028.
80. Id. at 1028-29.
81. Id. at 1032.
82. Id.
83. Id. at 1029 ("He was a purchaser in good faith and for value and was entitled to the benefit of a demand before action was brought against him."). This demand and refusal rule is in keeping with the more traditional cases on adverse possession as it serves to protect the adverse possessor. The more recent demand and refusal rule previously mentioned protects the original owner by insuring that the limitation period does not start running until a demand has been made. See Menzel v. List, 253 N.Y.S.2d 43, 44 (N.Y. App. Div. 1964).
84. Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1471 (9th Cir. 1989) (quoting George Emmons, The Whale House of Chilkat, in RAVEN'S BONES 68, 81 (Andrew Hope III ed., 1982)).
85. Id. at 1472-73.
86. Id. at 1475-76.
87. Id. at 1474-75.
88. Id. at 1478. The parties to this action eventually settled their dispute and the Tlingit artifacts were to be returned to Klukwan. Settlement Reached to Return Ilingit Art to Alaskan Village, THE SEATTLE TIMES, June 28, 1994, available in 1994 WL 3631895.
89. See, e.g., Oneida v. Oneida Indian Nation, 470 U.S. 226, 240 n.13 (1985) ("Under the Supremacy Clause, state-law time bars, e.g., adverse possession and laches, do not apply of their own force to Indian land title claims.").
90. See H.R. REP. NO. 101-877, at 27 (1990) (letter from Bruce C. Navarro, Deputy Assistant Attorney General discussing "takings" implication of the repatriation provisions).
91. 25 U.S.C. § 3013 (1994) ("The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter."). "Any person" is defined in the legislative history to include an Indian tribe, Native Hawaiian organization, museum, or agency. S. REP. NO. 101-473, at 14 (1990).
92. See Trope & Echo-Hawk, supra note 11, at 67-68 (discussing the "right of possession").
93. 25 U.S.C. § 3005(c) (1994). If a known lineal descendant or an Indian tribe or Native Hawaiian organization requests the return of Native American unassociated funerary objects, sacred objects or objects of cultural patrimony pursuant to this chapter and presents evidence which, if standing alone before the introduction of evidence to the contrary, would support a finding that the Federal agency or museum did not have the right of possession, then such agency or museum shall return such objects unless it can overcome such inference and prove that it has a right of possession to the objects. Id. (emphasis added).
94. 25 U.S.C. § 194 (1994).
95. Trope & Echo-Hawk, supra note 11, at 67.
96. H.R. 5237, 101st Cong. § 6(c)(1) (1990).
97. See Ralph W. Johnson & Sharon I. Haensly, Fifth Amendment Takings Implications of 1990 Native American Graves Protection and Repatriation Act, 24 ARIZ. ST. L.J. 151, 152-53 (1992). But see Steven Platzman, Comment, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 547 (1992) (arguing that the burden of proof rests on the culturally affiliated tribe).
98. See Ralph W. Johnson & Sharon I. Haensly, Fifth Amendment Takings Implications of 1990 Native American Graves Protection and Repatriation Act, 24 ARIZ. ST. L.J. 151, 152-53 (1992). But see Steven Platzman, Comment, Objects of Controversy: The Native American Right to Repatriation, 41 AM. U. L. REV. 517, 547 (1992) (arguing that the burden of proof rests on the culturally affiliated tribe).
99. 25 U.S.C. §§ 3005(c), 3001(13) (1994). Human remains and associated funerary objects are not subject to a "right of possession" defense or a Fifth Amendment Takings exemption. Id. § 3005(a)(1). For a comprehensive discussion of the application of Takings Clause jurisprudence to NAGPRA, see Daniel J. Hurtado, Native American Graves Protection and Repatriation Act: Does It Subject Museums to an Unconstitutional "Taking"?, 6 HOFSTRA PROP. L.J. 1 (1993) (arguing that the takings exception in NAGPRA defeats the purpose of the Act and that repatriation should be exempt from the Takings Clause); see also H.R. REP. NO. 101-877, at 25-29 (1990) (letter of Bruce C. Navarro, Deputy Assistant Attorney General discussing the takings implication of an earlier draft of the Act); Johnson & Haensly, supra note 75.
100. 25 U.S.C. §§ 3005(c), 3001(13) (1994). Human remains and associated funerary objects are not subject to a "right of possession" defense or a Fifth Amendment Takings exemption. Id. § 3005(a)(1). For a comprehensive discussion of the application of Takings Clause jurisprudence to NAGPRA, see Daniel J. Hurtado, Native American Graves Protection and Repatriation Act: Does It Subject Museums to an Unconstitutional "Taking"?, 6 HOFSTRA PROP. L.J. 1 (1993) (arguing that the takings exception in NAGPRA defeats the purpose of the Act and that repatriation should be exempt from the Takings Clause); see also H.R. REP. NO. 101-877, at 25-29 (1990) (letter of Bruce C. Navarro, Deputy Assistant Attorney General discussing the takings implication of an earlier draft of the Act); Johnson & Haensly, supra note 75.
101. H.R. REP. NO. 101-877, at 25-29 (1990) (letter of Bruce C. Navarro, Deputy Assistant Attorney General discussing the takings implication of an earlier draft of the Act).
102. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (holding that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978) (finding that takings are more readily found when the interference is a physical invasion (citing United States v. Causby, 328 U.S. 256 (1946))).
103. Although continuance of federal funding is conditional upon compliance with the Act, the federal government may not use its federal spending powers to force museums to engage in unconstitutional activities. In a letter to Congress, the Attorney General's Office states: "A strong argument could be made that Congress may not exercise the spending power to accomplish an uncompensated taking of private property, as such action would contravene the Constitution." H.R. REP. NO. 101-877, at 26-27 (letter from Bruce C. Navarro, Deputy Assistant Attorney General, citing Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)).
104. H.R. REP. NO. 101-877, at 27 (letter of Bruce C. Navarro, Deputy Assistant Attorney General).
105. This seems to be the attitude of at least one state museum. Thomas A. Livesay, director of the Museum of New Mexico, writes: "After weighing the advantages and disadvantages of repatriation, legal considerations should serve as the lowest common denominator. Ethical and moral issues are the priorities for the Museum's stance in implementing the federal legislation on repatriation." Thomas A. Livesay, The Impact of the Federal Repatriation Act on State-Operated Museums, 24 ARIZ. ST. L.J. 293, 301 (1992).
106. 25 U.S.C. § 3008 (1994).
107. 25 U.S.C. §§ 3001(13), 3005(c) (1994).
108. See Museum Set to Lose Indian Treasure, supra note 1.
109. The human rights dimension of the legislation is the focus of the Report of the Panel for a National Dialogue on Museum/Native American Relations (Feb. 28, 1990), reprinted in 24 ARIZ. ST. L.J. 487, at 494-95 (1992) ("The Panel believes that human rights should be the paramount principle where claims are made by Native American groups that have a cultural affiliation with remains and other materials.").
110. 136 CONG. REC. S17174 (daily ed. Oct. 26, 1990) (statement of Sen. Inouye).
111. See S. REP. NO. 101-473, at 17, 22-23 (1990).
112. 136 CONG. REC. S17174-17175 (daily ed. Oct. 26, 1990) (statement of Sen. Inouye).
113. Some of the objects in question are very valuable. A private art dealer testified that a war shirt in good condition with scalp locks could be sold for $200,000 on the open market. H.R. REP. NO. 101-877, at 13 (1990); see also De Meo, supra note 30, at 8-10 (noting the increasing value of Native American objects in the international art market).
114. Museum Set to Lose Indian Treasure, supra note 1, at A12.
115. Jeremy Waldron, Superseding Historic Injustice, 103 ETHICS 4, 6 (1992).
116. Id. at 9.
117. Id. at 13.
118. For a persuasive counter-argument to Waldron's observations on the problems of counterfactual judgments, see A. John Simmons, Historical Rights and Fair Shares, 14 LAW & PHIL. 149, 157-59 (1995) (arguing that counterfactual judgments are not "theoretically insuperable" if we assume, as we inevitably do in making most moral judgments, rational choices).
119. Waldron, supra note 91, at 15.
120. Id. at 16. Waldron's understanding of "expectation" appears to rely on the notion of control. Waldron states, "If a person controls a resource over a long enough period, then he and others may organize their lives and their economic activity around the premise that that resource is 'hers,' without much regard to the distant provenance of her entitlement." Id. But in the case of cultural patrimony in the possession of federally funded museums, those whose expectations are at stake are both those who own and manage the museum collection in addition to those who have ready access to the museum exhibit. These expectations may be of a limited sort, both because of the nature of the objects and because of the restricted forms of connection, but are nonetheless expectations worth considering.
121. Id. at 18-19.
122. Id. at 15-16.
123. For example, as previously discussed, a victim's claim to stolen art objects may be barred by either a statute of limitations or the doctrine of laches if she fails to exercise due diligence in seeking the whereabouts and return of the object. See DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir. 1987) (barring an original owner's attempt to recover a Monet because she failed to exercise due diligence in looking for it).
124. For the moment, I am disregarding the issue of qualitatively different attachments which are morally unsound, such as those which stem from greed or fetishism. See infra text accompanying notes 143-44.
125. Waldron, supra note 91, at 19.
126. Id.
127. Id. at 23.
128. Id. at 24.
129. Id. at 25.
130. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
131. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967). Ernest Beaglehole describes a story told to him by a Hopi about the division of land between the clans which provides a useful example of Demsetz's argument: Coyote was the first clan here . . . . Then other clans came. Land was not divided up, it was free for all to use and cultivate. Certain lands were better than others, they had better soil and were closer to water, so that trouble soon arose. Each began to cultivate near the best land. It grew crowded there. Quarrels arose and killings. It got so bad that the clans came to Coyote clan and asked that clan to make rules for the land to prevent further trouble. Coyote clan agreed and asked the swift little fox (coyote) to settle the trouble. . . . He went around the land dividing it up . . . for all the clans and all the villages. Between the fields of each clan and of each village, the fox marked off a space twenty feet wide saying that if a man cultivated this waste land he would go blind, he would be poisoned and die. The fox gave the same size land to each clan and each clan and village was told to keep to its own fields. He reported what he had done to the people and there was no trouble after this. Beaglehole, supra note 6, at 311-12.
132. Susan Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 COLUM. L. REV. 931, 937-41, 951-53 (1985). The other efficiency concerns discussed by Rose-Ackerman are free riders, coordination problems (prisoner's dilemma), and the cost of administering alternative policies. See also Richard A. Epstein, Why Restrain Alienation?, 85 COLUM. L. REV. 970 (1985).
133. Susan Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 COLUM. L. REV. 931, 937-41, 951-53 (1985). The other efficiency concerns discussed by Rose-Ackerman are free riders, coordination problems (prisoner's dilemma), and the cost of administering alternative policies. See also Richard A. Epstein, Why Restrain Alienation?, 85 COLUM. L. REV. 970 (1985).
134. Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1863 (1987).
135. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1111 (1972).
136. Id.
137. Id. at 1112.
138. "An entitlement is protected by a property rule to the extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the value of the entitlement is agreed upon by the seller." Id. at 1092.
139. "Whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it, an entitlement is protected by a liability rule." Id.
140. Id. at 1112.
141. See Fred McChesney, Government as Definer of Property Rights: Indian Lands, Ethnic Externalities and Bureaucratic Budgets, in PROPERTY RIGHTS AND INDIAN ECONOMIES, supra note 6, at 109-11.
142. Id. at 120. McChesney raises this argument in his discussion of the possible virtues of the federal government's role as trustee of Native American land. The preservation of a way of life, as he points out, may require restrictions on private ownership. This issue is at present at the forefront of the debate over alienation restrictions on Alaskan lands. See Martha Hirschfield, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 YALE L.J. 1331 (1992).
143. The Zuni War Gods, for example, are carved wooden figures which are left in specific places in the mountains for ritual purposes. To remove them is not only theft and sacrilege but further is said to rob the Gods of their powers. See Nichols et al., supra note 30, at 33.
144. The Wampum belts of the Iroquois are said to capture the existence. See Blair, supra note 31, at 126-27 (relying on the views of Onondaga Chief Oren Lyons).
145. Strickland, supra note 9, at 184.
146. Id. at 183-84.
147. Paternalistic reasons for ownership restrictions can also be understood as efficiency reasons. See Calabresi & Melamed, supra note 110, at 1113-14.
148. COHEN, supra note 6, at 510.
149. Margaret Radin, however, argues that the moralism-externality argument merges into paternalism: "[b]y imposing paternalistic restraints, we are benefiting those people whose subjective moral beliefs include the 'knowledge' that others would be better off if restrained, and who attach subjective value to seeing them better off." Radin, supra note 109, at 1866, n.59. According to this argument, it is hard to escape the conclusion that there are paternalistic reasons at work.
150. Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 758-60 (1986).
151. See John Henry Merryman, The Retention of Cultural Property, 21 U.C. DAVIS L. REV. 477, 506-08, 511-12 (1988).
152. 25 U.S.C. § 3001(3)(D) (1994).
153. See id. § 3001(13).
154. The discussion of property and identity will rely predominantly on Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982), and a note extending her theory to the ownership of cultural patrimony, John Moustakas, Note, Group Rights in Cultural Property: Justifying Strict Inalienability, 74 CORNELL L. REV. 1179 (1989).
155. The discussion of property and identity will rely predominantly on Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982), and a note extending her theory to the ownership of cultural patrimony, John Moustakas, Note, Group Rights in Cultural Property: Justifying Strict Inalienability, 74 CORNELL L. REV. 1179 (1989).
156. The discussion of inherently public property will rely primarily on the work of Carol Rose, supra note 125.
157. Radin, supra note 129, at 957.
158. Calabresi & Melamed, supra note 110, at 1092.
159. Radin, supra note 129, at 968-69.
160. Relatively mundane objects that are neither unique nor central to one's well-being may violate the prohibition against "bad object relations."
161. See Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUBL. AFF. 350 (1986).
162. See Radin, supra note 109, at 1925-36.
163. See infra text accompanying note 212.
164. Moustakas, supra note 129.
165. Id. at 1185.
166. Id. at 1192-93, 1196-1201 (discussing whether the Parthenon Marbles qualify as "property for grouphood").
167. Id. at 1207-09.
168. See Merryman, supra note 46, at 1895-1902 (arguing that the Elgin Marbles were legally removed from the Parthenon).
169. Moustakas, supra note 129, at 1189.
170. Radin, supra note 129, at 969 (emphasis added).
171. Moustakas, supra note 129, at 1208.
172. The relationship of an artist to her work of art, after it has been sold or given to someone else, is often treated in this manner. Artists are sometimes said, particularly in civil law countries, to retain "moral rights" in their works of art. An artist should be given some say in what becomes of his works "since they are the material and publicly visible fruit of his emotions, vision of the world and personality." Quentin Byrne-Sutton, The Owner of a Work of Visual Art and the Artist: Potential Conflict of Interests, in INTERESTS IN GOODS 281, 287 (Norman Palmer & Ewan McKendrick eds., 1993); see also JOHN HENRY MERRYMAN & ALBERT E. ELSEN, LAW, ETHICS, AND THE VISUAL ARTS 143-44 (1987); John Henry Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023-28 (1976).
173. The relationship of an artist to her work of art, after it has been sold or given to someone else, is often treated in this manner. Artists are sometimes said, particularly in civil law countries, to retain "moral rights" in their works of art. An artist should be given some say in what becomes of his works "since they are the material and publicly visible fruit of his emotions, vision of the world and personality." Quentin Byrne-Sutton, The Owner of a Work of Visual Art and the Artist: Potential Conflict of Interests, in INTERESTS IN GOODS 281, 287 (Norman Palmer & Ewan McKendrick eds., 1993); see also JOHN HENRY MERRYMAN & ALBERT E. ELSEN, LAW, ETHICS, AND THE VISUAL ARTS 143-44 (1987); John Henry Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023-28 (1976).
174. The relationship of an artist to her work of art, after it has been sold or given to someone else, is often treated in this manner. Artists are sometimes said, particularly in civil law countries, to retain "moral rights" in their works of art. An artist should be given some say in what becomes of his works "since they are the material and publicly visible fruit of his emotions, vision of the world and personality." Quentin Byrne-Sutton, The Owner of a Work of Visual Art and the Artist: Potential Conflict of Interests, in INTERESTS IN GOODS 281, 287 (Norman Palmer & Ewan McKendrick eds., 1993); see also JOHN HENRY MERRYMAN & ALBERT E. ELSEN, LAW, ETHICS, AND THE VISUAL ARTS 143-44 (1987); John Henry Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023-28 (1976).
175. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 20-21 (1988) ("[T]he claim not to be ruled out of the class of people who may own property . . . of course, does not guarantee that anyone . . . will actually get to be an owner . . . .") (emphasis in original).
176. It is important to remember that NAGPRA does not consider cultural patrimony inalienable but consent of the tribe as a whole is required for a legitimate transfer. 25 U.S.C. § 3001(3)(D) (1994).
177. STEPHEN R. MUNZER, A THEORY OF PROPERTY 67-70 (1990); WALDRON, supra note 147, at 360-61, 363-65.
178. The most notable is John Ruskin. See Joseph L. Sax, Is Anyone Minding Stonehenge? The Origins of Cultural Property Protection in England, 78 CAL. L. REV. 1543, 1560 (1990).
179. Id. at 1545-46.
180. Joseph L. Sax, Heritage Preservation as a Public Duty: The Abbe Gregoire and the Origins of an Idea, 88 MICH. L. REV. 1142, 1151 (1990) (quoting Lord Francis Hervey, a lawyer).
181. Id. at 1545.
182. Id. at 1547-49. Discussing the Lubbock Bill, the author noted that: [The] bill marked a radical turn in the development of property law. His was the first piece of legislation in the Anglo-American world to embrace two related principles: that the protection of cultural property was a governmental duty, and that public ownership and control should be brought to bear on unwilling proprietors. Id. at 1549.
183. Id. at 1562-63.
184. Id. at 1561 (quoting JOHN RUSKIN, THE SEVEN LAMPS OF ARCHITECTURE 201 (1956)).
185. Sax, supra note 152 at 1562 ("[T]he work did not and should not, if we respected its makers and their sense of commitment, belong to us. It was not the buildings, but their builders, who had a claim upon us.").
186. Rose, supra note 125, at 711, 721, 730-31 (1986) (discussing the distinction between the government as the public and the "unorganized public" owning property).
187. Id. at 723-30 (discussing law pertaining to roadways and waterways). Some of these same public rights in property were recognized in Roman law. Justinian states: [A]ll rivers and harbours are public, so that all persons have a right to fish therein. . . . Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his or her vessel to the bank . . . as freely as he may navigate the river itself. . . . Again, the public use of the sea-shore, as of the sea itself, is part of the law of nations . . . . J. INST. 2.1.
188. Rose, supra note 125, at 713.
189. Id. at 774-82.
190. Id. at 777 (discussing United States v. Gettysburg Elec. Ry., 160 U.S. 668 (1896), in which the United States sought to create a national battlefield memorial at Gettysburg).
191. Report of the Panel for a National Dialogue on Museum/Native American Relations, supra note 85, at 495-96 (recognizing the knowledge to be gained from and the educational value of cultural objects).
192. John Henry Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV. 339, 349 (1989).
193. Id. at 353.
194. Id. at 345-49, 353-55; see also Merryman, supra note 164, at 1895 (explaining why "we care" about cultural property).
195. Rose, supra note 125, at 774.
196. Id. at 740.
197. Id. at 741 (cases cited therein).
198. See, e.g., Graham v. Walker, 61 A. 98, 99 (1905), discussed in Rose, supra note 125, at 741 ("[S]uch rules of the English common law . . . were unadapted to the conditions of political society existing here, and have never been in force in Connecticut.").
199. See, e.g., Ackerman v. Shelp, 8 N.J.L. 125, 130 (1825) (noting that immemorial usage is impossible in the United States whose history does not extend back to the reign of Richard I), cited in Rose, supra note 125, at 741 n.145; Delaphane v. Crenshaw & Fisher, 56 Va. (15 Gratt.) 457, 470-71 (1860) (noting that the notion of a law predating the common law is impossible in the United States), cited in Rose, supra note 125, at 741 n.145.
200. COHEN, supra note 6, at 442.
201. See Graham, 61 A. at 99, discussed in Rose, supra note 125, at 741. Rose suggests that this may in any event have been a misguided objection. She points out that the public-at-large which maintained the right of "implied dedication" had a less definite, more "fluctuating" character. Rose, supra note 125, at 741-42.
202. Rose, supra note 125, at 769 ("Recreation and festivals have meaning and special social value for a given community, not for the world at large.").
203. Cultural patrimony is, in this sense, similar to what Denise Reaume has termed "participatory goods." Reaume, supra note 7, at 9-10.
204. See, e.g., Nichols et al., supra note 30, at 33 (discussing the Zuni War Gods).
205. Those who argue against both repatriation and retention laws designed to prohibit the export of cultural property often do so on the basis of preservation and protection, ignoring the possibility that apparently neglectful indigenous treatment of cultural objects may be culturally required and serve an important cultural purpose. See, e.g., Merryman, supra note 126, at 502-08.
206. See Merryman, supra note 46, at 1915-16. This argument seems somewhat suspect with respect to the Parthenon Marbles, unless one stretches cultural attributes to include imperialism or an aspiring cosmopolitanism.
207. For a discussion of the incidents of ownership, see TONY HONORE, Ownership, in MAKING LAW BIND (1987).
208. The legal restrictions on how I use my car, when, where, and how I drive it, is evidence of a public entitlement or interest in my car. In fact, I may even lose my car completely if I violate certain restrictions. For example, my car may be taken away if used in the commission of a crime.
209. JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 38 (1988) ("The organizing idea of a private property system is that, in principle, each resource belongs to some individual.").
210. A fine example of the ensoulment or animation of objects is the following story remembered by Jonathan Haas of the Center for Cultural Understanding and Change at the Field Museum of Natural History: Haas recalls a visit to the museum a few years ago by some Hopi elders who were concerned about the kachinas on display and in storage. They said that the kachinas stored in plastic bags couldn't breathe and that all of the kachinas needed to be fed sacred cornmeal. With the museum's help, the elders placed all of the kachinas on the ground, faced them west, and conducted a feeding ceremony. Charles Storch, Museums Create a Flurry of Mixed Emotions as They Race to Divulge Native American Artifacts, CHI. TRIB., Nov. 15, 1993, at Tempo 1.
211. Hegel seemed to believe in the ensoulment of public memorials. He states, "public memorials are not property, or more precisely, it is their indwelling soul of remembrance and honor which gives them their validity as living and self-sufficient ends." GEORG WILHELM FRIEDRICH HEGEL, PHILOSOPHY OF RIGHT 64 (T.M. Knox trans., 1964).
212. The English common law rule held that "[t]he burial of the Cadaver is nullius in bonis and belongs to Ecclesiastical cognizance." 3 CO. INST. 203; see also Leno v. St. Joseph's Hosp., 302 N.E.2d 58, 59 (Ill. Sup. Ct. 1973) (holding there is no property right in the ordinary sense in a dead body); Lubin v. Sydenham Hosp., 42 N.Y.S.2d 654, 656 (N.Y. Sup. Ct. 1943). A deceased body does not form part of the deceased's estate. See Enos v. Snyder, 63 P. 170, 171 (Cal. Sup. Ct. 1900); Smart v. Moyer, 577 P.2d 108, 110 (Utah Sup. Ct. 1978). Also, it is not considered ordinary commercial chattel. See Larson v. Chase, 50 N.W. 238, 239 (Minn. Sup. Ct. 1891) (holding that there is no property right in a dead body in the ordinary commercial sense); Finley v. Atlantic Transp. Co., 115 N.E. 715, 717 (N.Y. Ct. App. 1917). See also Roger G. Magnusson, Proprietary Rights in Human Tissue, in INTERESTS IN GOODS 237, 239, 242-44 (Norman Palmer & Ewan McKendrick eds., 1993) (discussing first the English then the American positions on proprietary right in human corpses); Note, The Sale of Human Body Parts, 72 MICH. L. REV. 1182, 1241-44 (1974).
213. The English common law rule held that "[t]he burial of the Cadaver is nullius in bonis and belongs to Ecclesiastical cognizance." 3 CO. INST. 203; see also Leno v. St. Joseph's Hosp., 302 N.E.2d 58, 59 (Ill. Sup. Ct. 1973) (holding there is no property right in the ordinary sense in a dead body); Lubin v. Sydenham Hosp., 42 N.Y.S.2d 654, 656 (N.Y. Sup. Ct. 1943). A deceased body does not form part of the deceased's estate. See Enos v. Snyder, 63 P. 170, 171 (Cal. Sup. Ct. 1900); Smart v. Moyer, 577 P.2d 108, 110 (Utah Sup. Ct. 1978). Also, it is not considered ordinary commercial chattel. See Larson v. Chase, 50 N.W. 238, 239 (Minn. Sup. Ct. 1891) (holding that there is no property right in a dead body in the ordinary commercial sense); Finley v. Atlantic Transp. Co., 115 N.E. 715, 717 (N.Y. Ct. App. 1917). See also Roger G. Magnusson, Proprietary Rights in Human Tissue, in INTERESTS IN GOODS 237, 239, 242-44 (Norman Palmer & Ewan McKendrick eds., 1993) (discussing first the English then the American positions on proprietary right in human corpses); Note, The Sale of Human Body Parts, 72 MICH. L. REV. 1182, 1241-44 (1974).
214. See, e.g., Travelers Ins. Co. v. Welch, 82 F.2d 799, 801 (5th Cir. 1936); Pettigrew v. Pettigrew, 56 A. 878, 880 (Pa. Sup. Ct. 1904); Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 237-38, 242-43 (1872); see also Note, supra note 184, at 1245-46.
215. See Rivers v. Greenwood Cemetery, 22 S.E.2d 134, 135 (Ga. 1942).
216. PRICE, supra note 14, at 23.
217. See, e.g., CAL. HEALTH & SAFETY CODE §§ 8100, 8101 (West 1970 & Supp. 1997).
218. See Anderson v. Acheson, 110 N.W. 335, 340 (Iowa 1907) (stating that a subsequent owner of land is not permitted to disturb a burial plot found on the land).
219. See Rivers, 22 S.E.2d at 135 (asserting that a surviving spouse or next of kin retains an ongoing right to have the body properly buried).
220. In addition to the recent changes brought about through NAGPRA and other federal laws, including the Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa-470mm (1994) and the American Indian Religious Freedom Act, 42 U.S.C. § 1996, most states have extended legislative protection of cemeteries to unmarked burial sites. See, e.g., ALASKA STAT. § 41.35.020 (Michie 1988); COLO. REV. STAT. § 24-80-401 (1988). Such legislation has been passed in Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Virginia, Washington, and Wisconsin. Alaska, Arizona, Colorado, Montana, South Dakota, and West Virginia have passed such legislation in the past five years. See PRICE, supra note 14, at 122-25; David J. Harris, Respect for the Living and Respect for the Dead: Return of Indian and Other Native American Burial Remains, 39 WASH. U. J. URB. & CONTEMP. L. 195 (1991) (summarizing state laws on unmarked-burial protection); Yalung & Wala, supra note 14. Some states have also passed their own repatriation legislation dealing primarily with human remains. See, e.g., Unmarked Human Burial Sites and Skeletal Remains Protection Act, NEB. REV. STAT. § 12-1201 (1990); Yalung & Wala, supra note 14.
221. The case law dealing with dead bodies generally concerns recently dead bodies; skeletal remains are often excluded from the definition of a dead body. See Carter v. City of Zanesville, 52 N.E. 126, 127 (Ohio 1898) (stating that older human skeletal remains are not considered dead bodies under Ohio legislation); State v. Glass, 273 N.E.2d 893, 896 (Ohio Ct. App. 1971); see also Margaret Bowman, The Reburial of Native American Skeletal Remains: Approaches to the Resolution of a Conflict, 13 HARV. ENVTL. L. REV. 147, 169 (1989). Tribes will occasionally refuse an offer of repatriation because of the age of the remains and/or because the desecration committed in the removal is irreversible and return thus serves no purpose. See Livesay, supra note 81, at 297-98 (The Zuni rejected an offer from the New Mexico State Museum for the return of Zuni remains as they were "permanently desecrated," and the Nambe rejected a similar offer because the remains were over 800 years old.).
222. See, e.g., Newman v. State, 174 So. 2d 479, 481-82 (Fla. Dist. Ct. App. 1965) (acquitting a student who removed a skull from a burial in the Everglades of wantonly and maliciously disturbing the contents of a tomb on the basis that there was no malice and that the Seminole burial customs were "unfamiliar" as compared to Christian burials). For a "shameful account" of the collecting, stealing, and exhuming of Native American human remains, see BIEDER, supra note 12, at 278-363.
223. See Bowman, supra note 192, at 149; Quade, supra note 35, at 28 (stating that estimates range from 100,000 to 2.5 million). Information from the Office of Repatriation at the Smithsonian does not provide a final tally. It does state, however, that approximately 17,600 "skeletal lots" in the Physical Anthropology collection will be inventoried under direction from the National American Indian Museum Act, 20 U.S.C. § 80q (1994). The most immediate concern for the Smithsonian is dealing with four thousand skeletal remains transferred from the Army Medical Museum, which include remains collected by military officials from "battlefields, army posts and other locations." Killion et al., supra note 10, at 2.
224. Bowman, supra note 192, at 150-53 (discussing the conflict between the scientific community and Native Americans with respect to the disposition of remains).
225. Id. at 152 ("I think it is arrogance in the extreme to say that those sites have scientific value and should be exploited for their scientific value when the legacy is 300,000 human remains in cardboard boxes.").
226. See, for example, CAL. HEALTH & SAFETY CODE § 8100 (West 1970 & Supp. 1997); supra note 191 for a list of the states which have recently extended grave protection legislation to include unmarked burial sites.
227. But see Charrier v. Bell, 496 So. 2d 601 (La. Ct. App.); see discussion in text infra at note 201.
228. 180 Cal. Rptr. 423 (Ct. App. 1982).
229. Id. at 424. In response to this decision, California amended its laws pertaining to cemeteries so that they now explicitly include unmarked Native American burial grounds. CAL. GOV'T. CODE § 6254(r) (West 1990); CAL. HEALTH & SAFETY CODE § 7050.5 (West Supp. 1988); CAL. PUB. RES. CODE §§ 5097.94, .98, .99 (West 1984 & Supp.).
230. See, e.g., Charrier, 496 So.2d at 601 (noting that burial ground discovered on private land was not considered abandoned and descendants were given the "right to enjoin the disinternment of their deceased relatives, as well as receive damages for the desecration involved"). Native Americans have also unsuccessfully sought protection of their burial grounds through the free exercise clause of the First Amendment. See Lyng v. Northwest Indian Cemetery Ass'n, 485 U.S. 439 (1988) (rejecting free exercise argument against building a road and logging on a historically significant religious site on the basis that although the plan would seriously interfere with Indian religious practices, they were not "coerced by the Government's actions into violating their religious beliefs").
231. See supra note 191 for a list of the states which have recently extended grave protection legislation to include unmarked burial sites.
232. See PRICE, supra note 14, at 15.
233. Quade, supra note 35, at 29.
234. Bowman, supra note 192, at 149.
235. Id. at 149.
236. Id. at 150. [W]hen excavating an area in Tennessee to be flooded by the Tellico Dam, remains of white settlers, black slaves, and Native Americans were uncovered. The white remains and, after brief study, the black remains were reburied, both with suitable religious services. Only the Native American remains were retained for extensive study and have still not been returned to the earth. Id.
237. Quade, supra note 35, at 29.
238. However, the fact that culturally affiliated individuals other than proven lineal descendants can request human remains for reburial may be a departure from the common law approach which only grants to descendants the quasi-property right entitling them to bury the remains of their relatives. 25 U.S.C. § 3002(a) (1994); see, e.g., Bailey v. Miller, 143 N.Y.S.2d 122, 123-24 (Sup. Ct. 1955) (holding that an Indian who was not a direct descendant of anyone buried in a burial ground to be excavated was denied standing to prevent the disinternment of human remains).
239. Although the restrictions on the ownership of human remains and body parts are similar, they are by no means identical. Human remains are strictly inalienable, or in Susan Rose-Ackerman's taxonomy, purely inalienable: sales and gifts of human remains are forbidden. Whereas some body parts are only subject to a "modified" inalienability restriction. Rose-Ackerman, supra note 108, at 935, 948-49.
240. See The National Organ Transplant Act, 42 U.S.C. § 274e (1994). The Uniform Anatomical Gift Act of 1987 § 10 also prohibits the "purchase or sale" for "valuable consideration" of human organs if the removal is "intended to occur after the death of the decedent." UNIF. ANATOMICAL GIFT ACT § 10(a), SA U.L.A. 58 (1993).
241. Another possible reason is the prevention of murder for the sale of body parts.
242. House Hearing on H.R. 4080, "National Organ Transplant Act": Hearings Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce, 98th Cong., 128 (1984).
243. See, e.g., Finley v. Atlantic Transp. Co., 115 N.E. 715, 717 (N.Y. Ct. App. 1917) (holding that a body cannot be cast out so as to expose it to violation or offend the feelings or safety of the public).
244. Pettigrew v. Pettigrew, 56 A. 878, 879 (Pa. Sup. Ct. 1904) (emphasis added); see also Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 238 (1872) ("There is a duty, imposed by the universal feelings of mankind, to be discharged by some one towards the dead, a duty, and we may also say a right, to protect from violation, and a duty on the part of others to abstain from violation.").
245. In the story of Antigone, for example, Polynices, one of Antigone's brothers, participates in a revolt against Thebes and is killed. As punishment for his actions, his remains were to be left unburied but Antigone defies the order, buries her brother, and is consequently condemned to death.
246. See, e.g., 22A AM. JUR. 2D Dead Bodies § 19 ("It would seem, at common law, that if a poor person of no estate dies and there is no other person bound to perform the burial function, it is the duty of him under whose roof the body lies to carry it, decently covered, to the place of burial."); see also Finley, 115 N.E. at 715.
247. We might also compare cultural property to other scarce and precious resources, such as endangered species, to which we owe a duty of preservation. See Phyllis Mauch Messenger, Introduction, in THE ETHICS OF COLLECTING, supra note 30, at 1, 19-20 (comparing cultural property to endangered species by arguing that no one has a right to scarce, nonrenewable goods).
248. Pierce, 10 R.I. at 237.
249. Sax, supra note 152, at 1562-63 (discussing John Ruskin's views on cultural patrimony focusing on human genius).
250. This is a familiar British response to Greeks arguing for the return of the Parthenon Marbles. The British claim that the Parthenon Marbles are in fact more a part of British history and culture than a part of present day Greek culture. See Merryman, supra note 46, at 1915-16.
251. Richard Crewdson, Cultural Property - A Fourth Estate?, 81 THE LAW SOCIETY'S GAZETTE 126, 129 (1984) (discussing briefly the reasons for establishing a new set of property rules to deal with cultural property).
252. S. Rodata, Explanatory Memorandum, in The Art Trade: Report of the Committee on Culture and Education, Doc. No. 1126 (Council of Europe ed., 1988), as cited in Patrick O'Keefe, Intellectual Property, Cultural Property, Cultural Heritage: Do These Further Indigenous Interests? 6 (unpublished manuscript, on file with author).
253. S. Rodata, Explanatory Memorandum, in The Art Trade: Report of the Committee on Culture and Education, Doc. No. 1126 (Council of Europe ed., 1988), as cited in Patrick O'Keefe, Intellectual Property, Cultural Property, Cultural Heritage: Do These Further Indigenous Interests? 6 (unpublished manuscript, on file with author).
254. See, e.g., 3 LYNDEL V. PROTT & PATRICK J. O'KEEFE, LAW AND THE CULTURAL HERITAGE (1989).
255. O'Keefe, supra note 223, at 7.
256. Merryman, supra note 164, at 361 (arguing that a plausible solution for determining what to do with cultural property "begins by arranging preservation, truth, and access in declining order of importance, with the corollary that where they conflict the higher controls").
257. Id. at 243; see also Larson v. Chase, 50 N.W. 238, 239 (Minn. Sup. Ct. 1891) ("[T]his right is in the nature of a sacred trust . . . and, if she should neglect or misuse it, of course the courts would have the power to regulate and control its exercise.").
258. See, e.g., Larson, 50 N.W. at 238-39: [A]ll courts now concur in holding that the right to the possession of a dead body for the purposes of decent burial belongs to those most intimately and closely connected with the deceased by domestic ties, and that this is a right which the law will recognize and protect. . . . [A]nd, if she should neglect or misuse it, of course the courts would have the power to regulate and control its exercise.
259. See Nichols et al., supra note 30, at 33.
260. Larson, 50 N.W. at 238-39.
261. NAGPRA does provide grants to culturally affiliated tribes to assist them in repatriating their cultural patrimony. 25 U.S.C. § 3008(a) (1994).
262. Livesay, supra note 81, at 297-98.
263. Id. at 298-99.
264. Storch, supra note 182.
265. One need not even have a communitarian view of the world to support such an approach. See WILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 162-81 (1991).