NAGPRA and Its Limitations: Repatriation of Indigenous Cultural Heritage, 15 J. Marshall Rev. Intell. Prop. L. 472 (2016)

The historical conditions under which indigenous (and specifically Native American) cultural heritage objects have been collected present tremendous difficulties, since collecting efforts were frequently influenced, or even directed, by racist or colonialist ideologies. Recent decades have seen efforts to redress past wrongs, as well as to correct misunderstandings and misrepresentations. The restitution and repatriation processes of the Native American Graves Protection and Repatriation Act of 1990, enacted as human rights legislation, provide powerful, but imperfect tools for the protection of Native American cultural heritage. The challenges are both domestic and international.

Recent French auction sales of Hopi, Zuni, and Navajo sacred objects highlight the limitations of the available legal tools. But NAGPRA’s limitations do not only manifest in its lack of extraterritorial effect. Even domestically, courts have often interpreted NAGPRA restrictively, with little understanding of Native American cultures.