Law and Identity: Negotiating Meaning in the Native American Graves Protection and Repatriation Act

International Journal of Cultural Property

Volumn 6, Issue 2, 1997, Pages 199-230

  Fred, Morris A ^a  

^a NONE

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EID: 85011510205     PISSN: 09407391     EISSN: 14657317     Source Type: Journal    
DOI: 10.1017/S0940739197000301     Document Type: Article

References (110)

1. 25 U. S. C A. §§ 3001–3013 (Supp. IV 1992) [hereinafter NAGPRA].
2. Many of these problems have been analyzed in articles published after NAGPRA's enactment: See generally Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B. U. L. Rev. 559 (1995) [hereinafter Gerstenblith]
3. Christopher S. Byrne, Chilkat Indian Tribe v. Johnson and NAGPRA: Have We Finally Recognized Communal Property Rights in Cultural Objects?, 8 J. Envtl. L. & Litig. 109 (1993).
4. The Takings Clause of the Fifth Amendment provides that “private property” shall not “be taken for public use without just compensation.” U. S. Const. amend. V. The Takings Clause has been associated both with government's power of eminent domain (right to condemn property and take it upon compensation) and also with controlling government's power to regulate use of private property. With regard to NAGPRA, the question is whether “even if the museum is unable to demonstrate that it has the ‘ right of possession,’ it may not be required to repatriate the object if such repatriation would constitute a Fifth Amendment taking … as determined by the United States Claims Court.” Daniel J. Hurtado, Native American Grave Protection and Repatriation Act: Does it Subject Museums to an Unconstitutional “Taking”?, 6 Hofstra Prop. L. J. 1,5 (1993). Hurtado continues to suggest that while such a challenge may seem as fair as the notorious Dred Scott decision, the fact that this question lingers points to the importance of the collaborative effort between museums and Native Americans. Id. at 78—9, 81. This effort implies a balancing of equities, a legal process analogous to the overall interactive perspective taken in this paper. The Takings issue is recognized by Native Americans as presenting potential problems, both present and future. In Congressional testimony, the Chairman of the Standing Rock Sioux tribe Jesse Taken Alive worried about extending a 5th Amendment Taking to human remains, associated funerary objects and tribal lands, which “will effectively deny tribes their right to exercise ‘broad sovereign tribal authority’ over lands within their exterior boundaries that cradle the unmarked burials and burial mounds of our ancestors.”
5. Proposed Draft Final Regulations for Implementation of the Native American Graves Protection and Repatriation Act, oversight hearing of the Senate Indian Affairs Committee, Dec. 6, 1995.
6. See Thomas H. Boyd, Disputes Regarding the Possession of Native American Religious and Cultural Objects and Human Remains: A Discussion of the Applicable Law and Proposed Legislation, 55 Mo. L. Rev. 883 (1990) [hereinafter Boyd, Disputes Regarding the Possession].
7. Boyd notes that in Lyng v. Northwest Indian Cemetery Protective Association, 485 U. S. 439 (1988), the Supreme Court refused to enjoin the Forest Service from completing a highway through an area used historically for religious purposes by Yurok, Karok and Tolowa tribes in California. The Native Americans argued unsuccessfully that this would interfere with the free exercise of religion as guaranteed by the First Amendment. While the court acknowledged that the road would interfere with the Native Americans' ability to pursue aspects of their religious beliefs, it found no violation of constitutional rights because the Government had not coerced individuals into violating their religious beliefs.
8. Lyng, 485 U. S. at 451.
9. The Court also found that the American Indian Religious Freedom Act (42 U. S. C. §1996 (1988)) did not apply since there was no intent in that law “to create a cause of action or any judicially enforceable individual rights.”
10. Lyng, 485 U. S. at 455.
11. Further suggesting the difficulty in using freedom of religion arguments for repatriation of religious objects is the decision in Employment Division, Department of Human Resources v. Smith, 494 U. S. 872 (1990).
12. The Court allowed the state to prohibit use of peyote even during religious ceremonies as long as the interference with religious practice was “merely the incidental effect of a generally applicable and otherwise valid provision.” Smith, 494 U. S. at 878.
13. For other perspectives on the religious freedom issue, see James Riding In, Without Ethics and Morality: A Historical Overview of Imperial Archaeology and American Indians, 24 Ariz. St. L. J. 11, 23 (1992)
14. Suzan Shown Harjo, Native Peoples' Cultural and Human Rights: An Unfinished Agenda, 24 Ariz. St. L.J. 321 (1992).
15. 5 U. S. C. §§ 501 et seq. Virtually all federal agencies are subject to the APA's provisions. Passed by Congress in 1946 without a single dissenting vote, the APA sought to achieve fairness and some degree of uniformity in administrative procedures among the various agencies without unduly interfering with the efficient operation of government. Amended several times since its inception, the APA includes among its provisions those concerning its application to agencies; public information; Freedom of Information Act; formal and informal rule-making procedures; negotiated development of a proposed rule; formal adjudication procedures; alternative means of dispute resolution; coordination with other laws; availability of judicial review; standing to seek judicial review; and scope of judicial review.
16. John H. Reese, Administrative Law 79–81 (1995).
17. Senator Daniel K. Inouye, FOREWORDS Repatriation: Forging New Relationships, 24 Ariz. St. L. J. 1 (1992 [hereinafter Inouye]).
18. Gerstenblith, Ariz. St. L. J., at 641–72 (develops a uniform model for treatment of all cultural property within the United States with the primary purpose of returning control over cultural property to cultural groups that produce such property).
19. For arguments pertaining to these moral and ethical issues, 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 (1992) [hereinafter Trope & Echo-Hawk]
20. 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 (1992)
21. Leonard D. Duboff, 500 Years After Columbus: Protecting Native American Culture, 11 Cardozo Arts & Ent. L. J. 43 (1992).
22. Erving Goffman, Interaction Ritual: Essays in Face-to-Face Behavior (1967) [hereinafter Goffman, Interaction Ritual]. In this and others of his works, Goffrnan argues that individuals continually negotiate their personal identities in interaction with others. Thus, while the manifest goals of NAGPRA may involve negotiations over particular objects, there are latent (and equally important) goals involving negotiation over ethnic and professional boundaries of identity. Here I would merely like to suggest that future examination of NAGPRA negotiations might focus on how these identity-creating interactions are affected by differences and similarities in the ethnic and professional symbolic systems of identity.
23. Earlier bills attempting to provide for the protection of Native American remains and sacred objects were offered by Sen. John Melcher (S. 187, 101st Cong., 1st Session (1987))
24. Sen. John McCain (S. 1980, 101st Cong. (1988)) but were not enacted.
25. Antiquities Act of 1906, ch. 3060, 34 Stat. 225
26. (codified as amended at 16 U. S. C. § 431—433 (1988)). The primary goal of this act was not so much to prevent the removal of artifacts as “to preserve sites that contain information about the past through excavation and other types of investigation, and to facilitate the acquisition of objects for permanent preservation as part of the collections contained in public museums.”
27. Boyd, Dispute Regarding the Possession, U. S. C., at 893.
28. The Act was declared unconstitutional in United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974), in which the Court of Appeals found that the legislation failed to define such terms as “ruin” and “monument,” thus violating due process by “failing to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”
29. Gerstenblith, F.2d, at 582 n. 99.
30. Archaeological Resources Protection Act of 1979, Pub. L. No. 96—95, 93 Stat. 721 (1979)
31. (codified as amended at 16 U. S. C. §470aa-470mm (1988)). “The primary provisions of this act criminalize the excavation, destruction, unauthorized removal, sale, and purchase of archaeological resources from federally owned or controlled land.”Gerstenblith, U. S. C., at 582.
32. National Museum of American Indian Act of 1989, Pub. L. No. 101 — 185, 103 Stat. 1336 (1989)
33. codified at 20 U. S. C. § 80q - 1 to - 15 (Supp. L 1989) (establishing a federal museum for Native American culture).
34. Steven Platzman, Objects of Controversy: The Native American Right to Repatriation, 41 Am. U. L. Rev. 517, 537 (1992).
35. The Archaeological Resources Protection Act of 1979, for example, granted those with adequate professional expertise permits for excavation and removal of archaeological data and required that archaeological resources remain the property of the United States preserved in suitable locations such as museums and universities, Boyd, Disputes Regarding the Possession, Am. U. L. Rev., at 898.
36. In hearings before a Senate Panel evaluating implementation of NAGPRA, several individuals testified about the need to bring the Smithsonian under NAGPRA in order to make it comply with all NAGPRA requirements. Oversight Hearing of the Native American Graves Protection and Repatriation Act (Dec. 6, 1995) (statements by Tessie Naranjo, National Review Committee Chairperson, and Dan Monroe, Review Committee member).
37. Trope & Echo-Hawk, Am. U. L. Rev., at 54
38. Senator John McCain, present chairman and a supporter of NAGPRA, notes that museums throughout the country have between 100—200,000 Native American human remains in their collections.
39. John McCain, Repatriation: Balancing Interests, 24 Ariz. St. L. J. 5, 6 (1992).
40. It should be noted that various states had passed unmarked burial-protection laws and five have passed repatriation statutes since 1989, Rose Brown, Lesley Lawrence & Ken Kozlowski, Questions & Answers, 86 Law Library J. 381, 382 (1994)
41. professional associations such as the American Association of Museums had also adopted a policy on repatriation prior to NAGPRA (see Policy Regarding the Repatriation of Native American Ceremonial Objects and Human Remains, adopted by the Council of the American Association of Museums on January 15, 1988).
42. Report of the Panel for a National Dialogue on Museum/Native American Relations, 24 Ariz. St. L. J. 487 (Feb. 28, 1990) (hereinafter Dialogue). The planning meeting for the Dialogue was held on December 12, 1988 with subsequent meetings held throughout 1989.
43. Recognition of the danger posed to museums and their boards encouraged legislators to include in NAGPRA a section relieving museums of liability for neglecting their fiduciary responsibility. NAGPRA, Ariz. St. L. J., at § 3006(f).
44. Trope & Echo-Hawk, Ariz. St. L. J., at 76.
45. Public and congressional sympathy here was almost entirely on the side of the Native Americans; as one of my museum informants expressed it, “How would you like your grandmother's bones on display?!” Despite occasional articles in newspapers, it cannot be said that there is a general knowledge about the issues underlying NAGPRA. Nonetheless, one bestselling mystery whose plot is interwoven with a dispute over the Smithsonian's collection of Native American human remains and cultural objects creates some empathy with the Native American position at the outset when the lawyer/spokesperson of the museum receives a parcel containing the skeletal remains of her grandparents. Tony Hillerman, Talking God (1989).
46. 136 Cong. Rec. S17175 (daily ed. Oct. 26, 1990) (statement of Sen. Inouye).
47. 136 Cong. Rec. HI0990 (daily ed. Oct. 22, 1990) (statement of Rep. Collins). This may presage future expansion of the values entailed in the bill to other cultural groups both in and outside the United States, despite a clear indication that provisions of NAGPRA are not to be construed to apply to any group other than Native Americans due to the “unique relationship between the Federal Government and Indian tribes and Native Hawaiian organizations.” NAGPRA, Cong. Rec., at § 3010.
48. While in the Act itself human remains were defined within the framework of cultural items, with the publication of regulations, the latter term was deleted as an all-encompassing framework due to the recognition that it might be offensive to refer to human remains as “cultural items.” Native American Graves Protection and Repatriation Act Regulations, 60 C. F. R. 62137 (1995).
49. Funerary objects are those that were placed or reasonably believed to have been placed with individual human remains either at the time of death or later. “Associated” objects are those for which the institution also has the physical human remains; “unassociated” funerary objects are those which came from burial sites, but for which the institution holds no physical human remains to be repatriated. NAGPRA, C. F. R., at § 3001(3)(A)(B). “Sacred objects” are defined as “specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents,” id. § 3001(3)(C); “objects of cultural patrimony” means items having ongoing historical tradition or cultural importance central to the Native American tribe or Native Hawaiian organization itself, rather than property owned by an individual tribal or organization member, id. § 3001(3)(D). These objects are of such central importance that they may not be alienated, id. § 3001.
50. The following section is based on a summary of the implementation process as provided by the registrar of the Field Museum, thus reflecting that museum's procedure for implementation. Janice Klein, How to … Work with the Native American Graves Protection and Repatriation Act (NAGPRA), Illinois Association of Museums #9 (April 1995)
51. for the Field Museum's repatriation policy prior to NAGPRA, see Thomas H. Boyd & Jonathan Haas, The Native American Graves Protection and Repatriation Act: Prospects for New Partnerships Between Museums and Native American Groups, 24 ARIZ. St. L. J. 253, 280 (1992) [hereinafter Boyd & Haas].
52. For a discussion of the consultation process, see Janice Klein, NAGPRA, Consultation and the Field Museum, Registrar's Quarterly 7 (Fall 1995).
53. Cultural affiliation is defined as a relationship of shared group identity which can be reasonably traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group. It is established by a preponderance of evidence based on geographical, kinship, biological, archaeological and oral tradition, 60 C. F. R. 62160 (1995).
54. Most often aligned with the Cheyenne, the Arapaho of the Plains following the extermination of the bison herds in 1880 moved to reservations, one in western Oklahoma, another at Wind River in Wyoming. Alice B. Kehoe, North American Indians 301 (1992) [hereinafter Kehoe]. Traditionally, the Sun Dance wheel was the ritual centerpiece of an annual ceremony held at midsummer when all of the tribal bands congregated at a predetermined location. It served to bind the entire tribe as a unit, through a religious experience in which supernatural aid was called upon to assure the tribe of a plentiful supply of bison. Renewal of kin ties, the arranging of marriages, exchange of property, reciting deeds of past year — such social activities which also took place were secondary to the central group ritual. The Wheel was hung in an altar and given the title “Old Man” as a sign of respect. When not being used, it was wrapped in a bundle and kept by a family; thus, the case below reflecting a battle over which wheel was the real one has significance for familial prestige and power.
55. Robert F. Spencer, et al., The Native Americans; Prehistory and Ethnology of the North American Indians 378–381 (1965) [hereinafter Spencer]
56. see also Kehoe, The Native Americans; Prehistory and Ethnology of the North American Indians at 315. Before returning the Sun Dance Wheel, the Field Museum's Registrar Janice Klein was asked to photograph it for the tribe. After doing so, she sent them the photographs with the negatives. She noted that the question was whether “we should keep a record or acknowledge that the museum should never have had it by not keeping the negatives.” Moreover, the lack of photographs of the Wheel and Medicine Bundle in this article represent the Museum's sensitivity to the sacred nature of these objects and the right of the Native Americans to determine how they will be used.
57. The Oneida were one of the five tribes in what is now central New York State that originally composed the Iroquois Confederacy. While the Treaty of Buffalo Creek in 1838 provided for the removal of all Iroquois in New York to the Kansas Territory, many of the Oneidas refused to go and divided into three groups: one planned to move to Ontario, one which eventually moved to Green Bay, Wisconsin, and a few remained in New York. Jack Campisi, Oneida, in 15 Handbook of North American Indians 481,485 (Bruce G. Trigger, ed., 1978) [hereinafter Handbook]. The 1980 census listed approximately 9,000 Oneida, making them among the Iroquois tribes second in population only to the Mohawk (18,000).
58. Kehoe, Handbook of North American Indians, at 270.
59. Notice of Intent to Repatriate, 60 Federal Register 11109 (1995).
60. Spencer, Notice of Intent to Repatriate, at 396.
61. For description of use of wampum, see Elizabeth Tooker, The League of the Iroquois: Its History, Politics and Ritual, in Handbook, Notice of Intent to Repatriate, at 422.
62. In a letter to the National Review Committee, the Wisconsin Oneida suggested that the museum may be trying to assert its own right of possession.
63. The ancestral home of the Pawnee was in the Central Plains area in Nebraska. They were forced to vacate the area in 1874 and were removed to reservations in Oklahoma. The 1980 census listed 2500 Pawnee. Kehoe, Notice of Intent to Repatriate, at 308.
64. Notice of Intent to Repatriate, 60 Fed. Reg. 8732 (1995).
65. An interesting description of problems facing the Mashpee Tribe and the difficulties of resolving these in court is to be found in James Clifford, The Predicament of Culture: twentieth Century Ethnography, Literature, and Art 277 (1988) [hereinafter Clifford].
66. In the 19th century, the Kiowa were nomadic bison hunters in the southwestern Plains who had migrated from south-central Montana. They also counted as one of their bands a group of Apache known as the Kiowa-Apache. Both the Kiowa and Kiowa-Apache joined the Comanche on a reservation in Oklahoma. The 1980 census listed nearly 7,400 Kiowa. Kehoe, The Predicament of Culture: twentieth Century Ethnography, Literature, and Art, at 309–310.
67. Noting the difficulties involved with using legal definitions to identify sacred objects and objects of cultural patrimony, one author argues “that the histories of collections and the ethics of their acquisition ought to play the central role in the evaluation processes of NAGPRA.” Robert H. McLaughlin, The Native Graves Protection and Repatriation Act: Unresolved Issues Between Material Culture and Legal Definitions, 3 U. Chi. ROUNDTABLE 760 (1996).
68. Johnson v. M'Intosh, 21 U. S. 543 (8 Wheat. 1823). While Chief Justice Marshall recognized some rights of possession to the land occupied by Native Americans, he held that title to the land was ultimately in the hands of the conquerors, then represented by the U. S. Government.
69. Even when strongly supporting Native Americans with all the power of a century of research in hand, anthropologists are faced with problems in convincing a court to accept anthropological views of culture and ethnicity as a basis for legal decisions regarding such issues as property rights. For a description of the Mashpee trial, see Clifford, U. S., at 277.
70. City of Providence v. Babbitt, C. A. No. 96 668 (D. R. I. 1996).
71. Another case which avoided judicial review was that of a unique 150-year-old collection of 20 Nez Perce (Idaho) historic artifacts, valued at $608,100. These objects did not meet the criteria for repatriation under NAGPRA according to the Ohio State Historical Society which asked to be reimbursed for its value. Subsequently, the tribe raised the necessary money with the assistance of Idaho schools, Native American musicians, rock stars and major corporations. Nez Perce Tribal Chairman Samuel N. Penney stated: “This historic event should not be seen as an acquisition of museum artifacts. It is a restoration of an important part of the Nez Perce culture … we have seen a light of respect and compassion which suggests a greater future for our United States.” 3 American Indian Ritual Object Repatriation Foundation Newsletter 2 (Fall/Winter 1996–1997). While the involvement of large numbers of people to raise the money was noted as representing a positive development, this case also suggests that should repatriation claims be made for valuable art objects, resistance to settlement may increase. Among other NAGPRA-related cases is that of the Native Hawaiian organization's suit about the failure of the Bishop Museum in Hawaii to return expeditiously human remains for reburial.
72. In that case, Na Iwi O Na Kupuna O Makapu (by Hui Malama) v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995), the plaintiff was unsuccessful in its complaint asking the court to grant standing to human remains and seeking to prevent further research on the remains.
73. Other examples include the use of NAGPRA to support environmental claims in Abenaki Nation v. Hughes, 805 F. Supp. 234, 252 (D. Vt. 1992)
74. aff'd, 990 F.2d 729 (2d Cir. 1993). In ruling that NAGPRA applies only to cultural and funerary objects already possessed or under control of a federal agency or museum, the court rejected the plaintiffs claim that the Army Corps of Engineers' plan for flood control could have an impact on the remains and artifacts in the area.
75. In a property tax case, Monet v. Lee, Henderson & Wong, 1995 U. S. Dist Lexis 12862 (D. Haw. 1995), the plaintiff sought a temporary restraining order against a public auction on the basis that the bones found on the property and reburied underneath the house by the plaintiff should be excavated and reinterred. The court ruled that there was no proof that the claimant was a lineal descendant of those represented by the human remains and therefore denied standing. Id. at ∗ 12—∗ 13.
76. For a discussion of the concept of model “of and “for,” see Clifford Geertz, The Interpretation of Cultures: Selected Essays 93 (1973).
77. For a recent analysis of the role of law in the social construction of meaning as applied to the First Amendment, see Lawrence Lessig, The Regulation of Social Meaning, 62 U. Cm. L. Rev. 943 (1995).
78. Tribe Looks for its Past in Museums, Rocky Mountain News, Dec. 4, 1994, at 40a (quoting Sebastian LeBeau, head of Cultural Preservation Office of Cheyenne River Sioux).
79. Hastings Museum Director Edward Bisaillon, cited in id.
80. Roy Gonyea, curator of Native American arts and culture at Indianapolis' Eiteljorg Museum of American Indian and Western Art, cited in Diane Heilenman, An Indian Legacy, The Courier-Journal, Jan. 14, 1996, at Oil [hereinafter Heilenman, An Indian Legacy].
81. William Tallbull, chairman of Northern Cheyenne's cultural commission, cited in Charles Storch, At Peace With the Past, Chi. Trib., Nov. 15, 1993, at Tempo 1.
82. Suzan Harjo, President Of Morning Star Foundation, a Native American cultural rights advocacy group in Washington, D. C, cited in Mark Trumbull, Return of Native Objects Slowed Down by Red Tape, The Chr. Sci. Mon., Feb. 12, 1993, at 11.
83. Margie Macauly of Bristol Bay (Alaska) Native Corp., cited in Natalie Phillips, Natives Get Help Claiming Lost Artifacts, Anchorage Daily News, Oct. 10, 1995, at 1B.
84. K. Marie Porterfield, Tribes Sort Museum Inventories, Dallas Morning News, Nov. 26, 1995, at 40A
85. Larry Myers, member of Northern California Porno tribe and executive secretary of state Native American Heritage Commission, cited in Tribes Await Return of Ancestors' Bones, San Diego Union-Tribune, Aug. 23, 1992, at A22 [hereinafter Tribes].
86. Trope & Echo-Hawk, member of Northern California Porno tribe and executive secretary of state Native American Heritage Commission, at 76.
87. For a discussion of the significance of these different subgroups within museums, see Paul DiMaggio, The Museum and the Public, in Martin Feldstein, The Economics of Art Museums 39, 45 (1991). The radical changes at the Field Museum in the last decade, represented by the conversion of its main exhibition space into highly interactive exhibitions, took place in an atmosphere of tense competition between curatorial and public programs staff.
88. Heilenman, An Indian Legacy, The Economics of Art Museums, at 01I.
89. Dena F. Dincauze, Bulletin for the Society of American Archaeology, III: 5 at 2 (November 1985).
90. Policy on Repatriation of Native American Ceremonial Objects and Human Remains, Council of the American Association of Museums, adopted January 15, 1988.
91. A less accommodating statement of principles and objectives was released by the American Committee for Preservation of Archaeological Collections, a nationwide group of over 800 members in all fifty states. A resolution adopted by its organizing committee on November 4, 1981, asserted that because “archaeological collections are considered to be part of the historical and cultural heritage of the nation and the property of all citizens … it is therefore resolved … [that] [w]e reconfirm the professional and ethical duty of scholars to observe their responsibility to preserve and maintain for study by qualified scholars all archaeological collections obtained in the course of field investigations. Archaeological collections are defined as including historic and prehistoric artifacts, skeletal remains … and all other materials removed from archaeological sites for purposes of study and investigation. See ACPAC Newsletter, American Committee for the Preservation of Archaeological Collections (Whittier, CA).
92. Jane Buikstra, Proposed Federal Legislation, Memo to American Ass'n of Physical Anthropologists Membership (1987).
93. Mary Voelz Chandler, Building a Sacred Trust, Rocky Mountain News, May 29, 1994, at 56 a
94. (quoting Robert B. Pickering, Department of Anthropology, Denver Museum of National History).
95. Tribes, Denver Museum of National History.
96. Heilenman, An American Legacy, Denver Museum of National History.
97. It was even suggested that one motivation for the ultimate involvement of the American Association of Museums in pushing for repatriation was the realization that as some form of federal legislation was inevitable, it was best for the museums to be part of the process so as not to abdicate total authority in the final project. This desire to maintain control is consistent with the dissents footnoted in the National Dialogue panel cited earlier (Dialogue, Denver Museum of National History).
98. Peter H. Welsh, Repatriation and Cultural Preservation: Potent Objects, Potent Pasts, 25 U. Mich. J. L. Reform 837, 837 (1992).
99. Museums for a New Century: A Report of the Commission on Museums for a New Century 19 (American Association of Museums 1984).
100. Museums for a New Century: A Report of the Commission on Museums for a New Century 19, 59 (American Association of Museums 1984).
101. In the Field, Jan./Feb. 1994.
102. Debates within the anthropological discipline in the 1960s and 1970s may be recurring as a result of NAGPRA (e. g., the anthropologist as a “footsol-dier of Western imperialism”) with the potential to extend the debate (as in the case of the Elgin marbles) over collections held in American museums gathered by anthropologists conducting research outside the United States. Concern over the potential effect of the UNIDROIT Convention among museum professionals is one such expression of the concern that the principles of NAGPRA may have wider ramifications, even in spite of the fact that UNIDROIT is not retroactive in its effect. For a positive assessment of UNIDROIT's capacity to protect both original owners and bona fide purchasers, see Claudia Fox, The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: An Answer to the World Problem of Illicit Trade in Cultural Property, 9 Am. U. J. Int'l L. & Pol'y 225 (1993). Despite such encouragement, museums may have a hard time showing how objects came into their collections and this fear plus the political posture of nations seeking the return of objects has made museum professionals anxious.
103. Porterfield, Am. U. J. Int'l L. & Pol'y, at 3C.
104. Oversight Hearing of the Native American Graves Protection and Repatriation Act, U. S. Senate (Dec. 6, 1995).
105. Museums also complained both about this and about the lack of funds for smaller institutions to carry out inventories and summaries. In Congressional testimony, Dan L. Monroe, Executive Director and CEO of the Peabody Essex Museum and member of the NAGPRA Review Committee, noted the need for increased financial assistance to museums, universities and tribes because the amount appropriated by Congress “is less than 5% of the total, conservatively estimated $55 million in costs for NAGPRA implementation to date.” Implementing the Native American Graves Protection and Repatriation Act, Testimony to the Senate Committee on Indian Affairs, Dec. 3, 1995.
106. See Inouye, Testimony to the Senate Committee on Indian Affairs, at 3.
107. For a summary of the Field Museum's repatriation policies, see Boyd & Haas, Testimony to the Senate Committee on Indian Affairs, at 281. The perception of the cooperative stance of Field Museum staff is not necessarily shared by all Native Americans involved in repatriation efforts. For example, in his testimony before the Senate Indian Affairs Committee, Jesse Taken Alive, Chairman of the Standing Rock Sioux tribe, asked the Committee, among other things, to “please investigate whether certain museums like the Chicago Field Museum still maintain internal policies which will prevent the repatriation of human remains of great antiquity.”
108. Proposed Draft Final Regulations for Implementation of the Native American Graves Protection and Repatriation Act, Dec. 6, 1995. For the purposes of this article, it is less important whose perception is correct; what is important to understand is that the process of negotiation between Native Americans and museum professionals involves not merely negotiation over the disposition of various objects but also negotiation over the qualities that define their respective identities, whether ethnic/cultural or professional.
109. See Goffman, Interaction Ritual, Proposed Draft Final Regulations for Implementation of the Native American Graves Protection and Repatriation Act.
110. Peter L. Berger & Thomas Luckmann, The Social Construction of Reality (1979).