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Suzianne D. Painter-Thorne

Excerpted from: Suzianne D. Painter-Thorne, Contested Objects, Contested Meanings: Native American Grave Protection Laws and the Interpretation of Culture , 35 University of California Davis Law Review 1261- 1303, 1262-1264 (June, 2002) (299 Footnotes Omitted)

At the close of King Philip's War in 1676, Pilgrims in the town of Plymouth beheaded the Wampanoag Chief, Metacom. The colonists placed Metacom's severed head on a spike, where it remained on display for nearly twenty years. The Colony's religious leaders described their action as the proper way to deal with Native Americans, whom many of these leaders considered servants of the devil. The display served as a reminder--to both the Pilgrims and the Wampanoag--of the colonists' dominance over the native people. Thus, this first exhibit of Native American remains served both a political and religious purpose for the European exhibitors.

In the nineteenth century, museums provided more extensive displays of Native American remains and cultural objects. Museum curators determined which cultural objects in their possession would represent Native American culture. More importantly, these curators also determined how to display those objects and influenced the meanings attached to them. Without property rights over their ancestral remains, the tribes were unable to control the representation of those objects. Like the Pilgrims' display of Metacom's head, these subsequent exhibits of native remains failed to incorporate the views of those they purported to represent.

Since the early excavations of their burial sites, Native Americans sought recognition of their rights over their ancestors' remains and funerary objects. However, for much of the period after initial contact with Europeans, Native Americans lacked sufficient political influence to bring about any change. This condition of political powerlessness began to shift in the 1980s, when Native American activists focused on the theft of their tribes' ancestral remains and sacred objects. These activists raised concerns about the desecration of their ancestors' burial sites and the removal and collection of their ancestors' remains and sacred objects by museum curators and archaeologists. Further, the activists sought the return of Native American remains so that the tribes could rebury their ancestors according to their cultural traditions. Native Americans, however, lacked any legal claim to the remains and sacred objects.

Congress addressed the activists' demands by passing two laws granting Native Americans greater control over their tribes' ancestral remains and cultural objects.1 The first is the National Museum of the American Indian Act (Museum Act), passed in 1989.2 The second is the Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990.3 These laws provide Native Americans the right to control their ancestral remains and funerary objects. Control over the physical objects of their culture is vital to the ability of these tribes to communicate their own cultural image.

While the Museum Act and NAGPRA grant Native American tribes the right to control the physical objects of their cultures, many Native Americans continue to seek control over nonmaterial aspects of their cultures, including control over the meaning ascribed to their history and culture. Although it is important to remember that there is not one unified view of native culture held by all--or even most--Native Americans, such control is nevertheless essential to a tribe's ability to construct and debate its own cultural identity. The extent to which physical control of objects provides for the control of cultural identity is the focus of this paper

This Comment argues that the Museum Act and NAGPRA recognize a property right that extends beyond the ownership of cultural objects.

Part I of this paper provides an historical, social, and legal context to the issue of control of Native American culture.

Part II discusses the Museum Act and NAGPRA in detail.

Part III argues that these laws supplement traditional notions of property by granting control over not only objects, but also the meaning attached to those objects. Even if not exclusive, this grant of control ensures that Native American voices are considered in the representation of native culture.