Rogers on the Unique Property Status of Native American Remains

Jim Thorpe at the 1912 Summer Olympics (via). In 2010 Thorpe’s children and the Sac and Fox Nation sued the town of Jim Thorpe, Pennsylvania seeking to repatriate his remains under the Native American Graves Protection and Repatriation Act.

Alix Rogers (Stanford Law School fellow, and PhD candidate at the University of Cambridge) has posted an article titled “Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains” on SSRN.

This article unifies two areas of property scholarship that have not historically intersected. In the field of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property.

With the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) Native American remains are classified as familial and tribal property. The distinction and significance of property status under NAGPRA has been overlooked in the Native American legal scholarship. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications.

At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after re-considering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to more effectively protect their dead compared to any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform more broadly.

Rogers, Alix, Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains (June 11, 2019). Available at SSRN: or

Ross on the barriers to post-colonial repatriation

“Raven/Sisutl transformation mask by Oscar Matilpi, Kwakwaka’wakw Nation, 1997. In the permanent collection of The Children’s Museum of Indianapolis.” CC BY-SA 3.0

Sara Ross, a Ph.D. candidate at Osgoode Hall Law has published an article in the American Indian Law Journal titled: “Res Extra Commercium and the Barriers Faced When Seeking the Repatriation and Return of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach”. From the abstract:

The repatriation and return of objects of cultural value are often linked to decolonization projects and efforts to repair past wrongs suffered as a result of colonialism. Yet significant barriers hinder these efforts. These barriers primarily take the shape of time limitations, diverging conceptions of property and ownership, the high costs involved, and the domestic export and cultural heritage laws of both the source country and the destination country. I argue that these barriers are relics of colonialism that replicate and perpetuate the continued imposition of Eurocentric and Western legal notions and values on subaltern source countries and source indigenous groups. In order to truly move beyond the remaining relics of colonialism into a context where the culture and values of all groups are accorded equal respect, it is important that these barriers be removed.

Sara Ross, Res Extra Commercium and the Barriers Faced When Seeking the Repatriation and Return of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, SSRN Scholarly Paper ID 2755435 (Social Science Research Network), Mar. 28, 2016.

Birkhold on ‘Double-Edged’ Repatriation

The Hopi village of Walpi, on top of the First Mesa on the Hopi Reservation
The Hopi village of Walpi, on top of the First Mesa on the Hopi Reservation

Native American objects make for popular, if controversial, auctions in France. And that trend looks to continue. Last month in Paris the auction house EVE had put up for auction a number of sacred native american objects. The objects had been held by French private collectors. Their history has not been uncovered by the press. Many of the object originated from the Hopi nation, and the Hopi went to French court to seek a return of the objects, but were unsuccessful.

The auction on December 9th proceeded and the objects all were sold. Yet the buyer was the Anenberg foundation. Speaking later, Gregory Annenberg Weingarten, vice president and director of the Anenberg foundation stated of the Hopi objects:

These are not trophies to have on one’s mantel, . . . They are truly sacred works for the Native Americans. They do not belong in auction houses or private collection.

As Matthew Birkhold argues, the Annenberg Foundation essentially purchased the right to decide what happens to the objects:

At the auction, the foundation purchased the ability to make the decision about who should own the cultural artifacts, notably, artifacts the tribes couldn’t — or wouldn’t — buy themselves, even after legal and diplomatic efforts to delay the auction failed. And even though the foundation arguably made the right decision to restore the artifacts to the tribes, it has legitimized the very situation it means to criticize, making the sacred objects seem fair game.

Moreover, the subjects of the tribes’ and the foundation’s censure — the auction house and those participating in the art market — are unlikely to hear the reproach, especially because the auction proved so successful. The auction house likely cares more about the $1.6 million in sales than who bought the contested items or what happens to them.

Maybe it would have been better for the tribes to have lost the objects. The tribes could have made a more meaningful statement by repudiating the sale and doggedly insisting on their legal claims to the items. Such a response would reaffirm the tribes’ sovereignty while rejecting the notion that a price can be put on sacred objects. However, the decision to make such a sacrifice — forgoing their cultural artifacts — has to come from the tribes.

The best bet for indigenous people to secure their cultural property is through the legal system, where taking a principled stand could pay dividends.

A good result was reached in this case for the Hopi. Their sacred objects can return home. And the Annenberg foundation certainly has the funds for this. But the underlying mechanics of auctions and heritage protection and preservation remain unchanged. Other groups without the goodwill of well-funded organizations will not see such a good result.

  1. Annenberg’s Double-Edged Gift to the Hopi, Bloomberg,
  2. Tom Mashberg, Secret Bids Guide Hopi Indians’ Spirits Home, The New York Times, Dec. 16, 2013.


Student Essay on NAGPRA and ‘culturally unidentified’ human remains

Matthew Birkhold has won the National native American Law Students Association’s 10th annual writing competition with an assay published in the William Mitchell Law Review. From the Introduction:

In recent years, NAGPRA’s characteristic equilibrium has fallen out of balance. In an effort to restore the law’s equipoise, the Department of the Interior published a new final rule, effective May 14, 2010, delineating procedures for the disposition of culturally unidentified Native American human remains in the possession or control of museums and federal agencies. In this attempt, however, the new law swung too far. By evaluating the new rule’s impact on culturally unidentified human remains, this article interrogates the notion that the new regulation is an “important step toward fulfilling the intent of Congress as expressed in NAGPRA.” Because NAGPRA itself is silent on the appropriate disposition of culturally unidentified remains, the only guidance about the intent of the new law comes from the legislative history of the Act, the Department of the Interior, and the courts. Each source establishes NAGPRA as human rights legislation designed to protect Native Americans’ rights and demonstrate respect for remains while achieving an agreeable counterpoise between the competing interests of the Native American and scientific communities.
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Student Note on Orphaned Works and Cultural History

Brianna Dahlberg has posted a student note on orphaned works and access to cultural history in the Southern California Review of Law & Social Justice. From the abstract:

Orphan works are copyrighted works whose owners are difficult or impossible to find. They include a vast number of old works in museums, archives and libraries that are not being commercially exploited by rights holders because they are out-of-print, unpublished or anonymous, but nonetheless have cultural or historical significance. However, if the institutions cannot locate the rights holders, they cannot publish or publicly display these works without risking a copyright infringement lawsuit should the rights holders come forward in the future. This Note addresses a new aspect of the orphan works problem: its disproportionate impact on works created by racial and religious minorities, women, Native Americans and other indigenous people, and the poor. Locating rights holders for early-twentieth century works by these groups tends to be especially difficult for a variety of reasons. Minority and poor white musicians were routinely excluded from performing rights organizations until the 1940s and were less likely to register their copyrights. Women and minority visual artists often created their works apart from the established gallery system, and their artworks tend to be less exhibited and well-known. The identifying information for folk art and traditional Native American art is often lost. As a result, many of these important works remain locked away in archives and inaccessible to the public. This Note proposes a solution to the orphan works problem with the goals of promoting broader cultural access and participation in mind. I evaluate four potential approaches, and conclude that the Nordic countries’ solution of extended collective licensing would best serve the goal of promoting access to cultural works of disadvantaged groups while fairly compensating rights holders who do come forward.

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China’s Repatriation Team Visits the Met

File:Yuanmingyuan zuoshi.jpg“That wasn’t so bad after all”

So said James C.Y. Watt, the head of Asian art at the Met after a team of Chinese experts visited the institution looking for objects which had once been at the Chinese Old Summer Palace in Beijing.  China has been looking to buy or repatriate objects from the Old Summer Palace. 

The looting of the palace during the Second Opium War in 1860 holds great historical significance for many in China.  In response to the execution of twenty European and Indian prisoners, Lord Elgin (son of the the Elgin who removed the sculptures from the Parthenon) ordered the destruction of the palace.  As a 27 year-old captain in the Royal Engineers wrote:

We went out, and, after pillaging it, burned the whole place, destroying in a vandal-like manner most valuable property which [could] not be replaced for four millions. We got upward of £48 apiece prize money…I have done well. The [local] people are very civil, but I think the grandees hate us, as they must after what we did the Palace. You can scarcely imagine the beauty and magnificence of the places we burnt. It made one’s heart sore to burn them; in fact, these places were so large, and we were so pressed for time, that we could not plunder them carefully. Quantities of gold ornaments were burnt, considered as brass. It was wretchedly demoralising work for an army.

This destruction continues to shape how China views its relationship with the West.  Chinese experts have conducted a campaign to seek the return of many of the objects looted from the palace.  This includes the “guerilla bidding” last year which effectively prevented the auction of two bronzes from the palace last year. 

Andrew Jacobs account of the visit calls into question the motives of the Chinese delegation.  He throws quotations around the phrase “treasure hunting team”, but the tenor in his piece echoes the pejorative of the phrase.  Many in the West still fail to engage with the fundamental issue.  Had the White House been burned and sacked in 1860, wouldn’t a powerful America be doing everything it could to seek the return of these objects? 

Jacobs references the criticism of Chinese destruction of historical sites.  But nearly every nation can be accused of the same.  What about the Native American burial mound which was decimated to create fill-dirt for a Sam’s Club in Alabama this year?  Does that mean America is an unsuitable steward for cultural treasures? 

  1. Andrew Jacobs, China Hunts for Art Treasures in U.S. Museums, The New York Times, December 17, 2009.
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Redds Sentenced to Probation

Jeanne and Jericca Redd (pictured here with their attorney) have been sentenced in the federal artifact-looting investigation. They are the first to be sentenced, there are at least 26 other potential criminal defendants. U.S. District Court Judge Waddous sentenced Jeanne Redd to 36 months’s probation and a $2,000 fine, and her daughter Jericca to 24 months’ probatoin and a $300 fine. Federal prosecutors had recommended 18 months in prison for Jeanne. Jeanne pleaded guilty to seven felonies, two counts of violating the Archaeological Resources Protection Act, two counts of theft, and three counts of theft of tribal property. Each one of those counts carried a potential fine of $250,000 and 10 years in prison. The younger Redd admitted to three felonies for digging up a seed jar, a vase, and a vessel on the Navajo reservation. Over 800 objects, including human remains were seized from the Redds.

However Judge Waddous said “This is a community where this kind of conduct . . . has been justified for a number of years . . . This is a woman who has spent her life as a member of her community . . . I want to express my thanks, . . . I know this has been a terrible experience for all of you.”
Judge Waddons is referring to the suicide of James Redd earlier this summer, and that seems to have had a substantial impact on the sentencing. It is also a general rule in sentencing that when a defendant pleads guilty, a prosecutor will recommend a much lesser sentence, but in this case the sentence fell far short of the sentence recommended by the prosecutors.

George Hardeen, a spokeseman for Navajo Nation president Joe Shirley Jr. said “The Navajo people are compassionate toward others who have had a tragic loss as the Redd family have . . . At the same time, Navajos have a deep respect for burials and ruins and teach that these are not to be disturbed. Obviously, Navajos want them left alone and not looted for their artifacts.”

In an interview on NPR this morning Mark Michel of the Archeological Conservancy said “The sentence is disappointing . . . And I’m afraid it sends a message that this is not serious criminal activity.”

U.S. Attorney Richard McKelvie saw it another way, “I can’t imagine anybody willfully subjecting themselves to anything the Redds have gone through . . . You can’t ignore the consequences that these people have suffered as a result of the investigation and prosecution of this case.”

These sentences are certainly on the light side, but even if the judge had thrown the “book” at the Redds and all the other defendants, would that have a sustained impact on the preservation of the archaeological record in the Southwest? It may, or it may produce a backlash. Criminal penalties are an important component, but criminal penalties in isolation will not solve the problem. There are very different ways of valuing these sites and objects, and increased awareness of how important and valuable the archaeological record is are critical components of this process.

Howard Berkes, Mother, Daughter Get Probation In Artifacts Theft [NPR, Sep. 16, 2009].
Patty Henetz, Redds dodge prison in artifact sentencing [The Salt Lake Tribune, Sep. 17, 2009].

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University of Utah to Act as Steward of Range Creek Canyon

Range Creek Canyon was an unknown archaeological site to a select few for the last century, but has recently gained a lot of recognition. It has some terrific remnants of the Fremont culture which disappeared about eight centuries ago. The land was owned by Waldo Wilcox who recognized the value of the sites and objects on his land, and kept. He sold the property to the state of Utah in 2001 for $2.5 million.

Given all of the investigation of looters in the region in recent months, it is perhaps worth remembering not all ranchers in the West view heritage as an exploitable resource. Arguably, the sites and objects were better cared for under Wilcox’s watch when nobody knew about them. In 2007, a piece for the Denver Post notes the looting of some of the sites after they were publicized.

Now the University of Utah will exchange some of its other trust lands for stewardship of part of the Canyon. Among the remnants in the canyon are ancient settlements, grain storehouses, and rock paintings. Perhaps more careful protection will be possible, but currently there is one caretaker who spends 9 months there every year.

From the AP:

Artifacts from baskets to tobacco bundles suggest human life showed up in Range Creek hundreds of years earlier and lingered longer, but significantly, the large population seemed to virtually vanish by 1,200 A.D., for reasons not fully understood. Metcalfe said the canyon was occupied by the so-called Fremont people, descendants of the continent’s original Paleo-Indians. As a culture, the Fremont were distinguished by their style of basket weaving, animal-claw moccasins and dual survival strategy of farming and hunting. Yet little else is known about them, including their ultimate fate — the conventional explanation of drought is coming under question. The farming-dependent Anasazi south of the Colorado River also disappeared about the same time, for reasons archaeologists struggle to explain. Modern American Indians tribes insist they simply absorbed the ancient people. To gain control of Range Creek, the University of Utah is giving up about 4 square miles of deer and elk habitat next to the Gordon Creek Wildlife Management Area in Carbon County. That parcel is part of the university’s trust lands granted at statehood. In return, the Division of Wildlife Resources will relinquish 2.3 square miles of parcels on Range Creek’s canyon bottom. “It seems like a perfectly good idea to us,” said John Andrews, the No. 2 ranking official at Utah School and Institutional Trust Lands Administration, which is acting as a broker for the trade. Andrews said his agency will hold title to the former ranch lands in Range Creek Canyon, but that the parcels will be controlled by the University of Utah and folded into its own set of trust lands, which are separate from the state’s. Public access, now strictly controlled, won’t change significantly under land covenants and congressional legislation approving the purchase of Range Creek Canyon, which was later transferred to the state, he said. Metcalfe said the university plans to rework some of the rules of public access to make research and the protection of sites a higher priority. Metcalfe supervises surveys and selective digs by graduate students at Range Creek, which is guarded by a locked gate. A university caretaker spends nine months of the year in the canyon, which is snowbound during winter.

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More on the Current Market in Tribal Artifacts

Susan Montoya Bryan for the AP has a long piece on the current state of the market in tribal artifacts. She notes that collectors and dealers at the Whitehawk Antique Show seemed more cautions about buying objects, fearful perhaps of incurring criminal liability.

The piece offers a lot of reaction by the dealers at the show, but very little input from archaeologists or others who may have a very different—some might even say accurate—view of the laws many of these dealers are criticizing.  There is also very little discussion of how any buyer knows these objects are legitimate, or even whether individuals should be purchasing some of these objects at all:

The dealers at the Santa Fe show, many of whom have been collecting and selling Indian artifacts for more than two decades, said they were concerned about their reputations because of a growing public perception that anyone involved in the trade could be involved with the criminal element that’s being targeted by federal agents.
“Are there people doing bad things? Yes. And I’m sure the court system will give them what they deserve,” said Walter Knox, a dealer who runs an upscale gallery in Scottsdale, Ariz. “But since this started, I’m still getting checked a lot, and it’s getting kind of silly.”
Every week, Knox said he has to run someone out of his gallery for trying to sell him stolen pots.
“I post my rules so people know I’m not going to deal with anything shady,” said Knox, a retired police officer.
Knox shrugged off the concerns, saying the caliber of dealers at the show is such that they have nothing to worry about.
While they don’t condone looting or the trafficking of illegal artifacts, many dealers said the federal government has been liberal in its interpretation of archaeological resource protection laws and heavy-handed in its effort to crack down.
Mac Grimmer, a Santa Fe dealer who has helped assemble many antique Indian art collections, said there have been crackdowns in the past and the market eventually settles down. But this could be different, he said.
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NAGPRA complaint against UMass

Gale Courey Toensing for Indian Country Today reports on a NAGPRA complaint against the University of Masachusetts:

A complaint against the University of Massachusetts Amherst, claiming violations of the Native American Graves Protection and Repatriation Act is under investigation and will be heard at a Review Committee meeting in the fall.

The complaint was filed jointly by Tribal Historic Preservation Officers Cheryl Andrews-Maltais of the Wampanoag Tribe of Gay Head, Aquinnah; John Brown III of the Narragansett Indian Tribe; and Sherry White of the Stockbridge-Munsee Community Band of Mohican Indians in May 2008. Andrews-Maltais has since been elected chairwoman of her tribe. . . .

The complaint says that UMass Amherst has violated NAGPRA by failing to respond to the tribes’ request for repatriation of human remains from the Connecticut River Valley that are in its possession, and failing to consult with the tribes.

The joint complaint also says the university failed to publish a complete inventory of the human remains and other items of cultural patrimony in its possession, and claims the remains from the Connecticut River Valley listed in its partial inventory are “culturally unaffiliated” even while admitting that the three tribes had a historical presence in and historical ties to the area, and that they are the only federally recognized tribes with standing to claim the remains.

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