In terms of the question of who has rights to cultural property, there is a whole constellation of very complex, interesting, and in many areas unresolved issues. In terms of human remains and return of human remains, it seems clear to me that very basic human rights transcend and supersede other sorts of interests, particularly scientific inquiry. Most Native American human remains acquired by universities, museums, and other agencies in this country were acquired without consultation with either the closest heirs or affiliated tribes. Their disposition should be determined by the closest heirs or affiliated tribes. And in fact, that's what the Native American Graves Protection and Repatriation Act calls for in its terms and conditions, and I'm a person who played, fortunately, a central role in the establishment of that act of 1990.
The Importance of Cultural Patrimony
In terms of cultural patrimony, that is objects that are central to the identity of a tribe, the argument made by Native Americans is that those objects could never have been owned or acquired legally, and therefore they should be returned. Basically NAGPARA, the repatriation act, establishes a fairly complex set of procedures for repatriation of such objects, but in the end it comes down to a point at which a museum, university, or other federal agency must make a decision as to whether or not the tribe, which presumably has cultural affiliation to the objects in question, has a greater right of possession than the agency, university, or museum.
Beyond that there's another level, which is not imbedded in legislation, but is a more general, ethical consideration, and that is, "Where would these objects of cultural patrimony have the greatest benefit to people?" And while there may be substantial benefit that is gained by showing such material in a museum, there's a greater benefit to be gained by the tribe by having these objects returned because they are so central to cultural identity.
It's imperative to grapple with the complex questions that deal with "whose cultural property is it?" This is particularly difficult when we have a world that is increasingly rich in terms of the mixture between cultures--on one hand, a lot of increasing homogeneity, on the other hand, a real desire throughout the world for people to maintain a sense of identity and some roots.
Science vs. Culture
The argument is often made that there are greater rights of scientific inquiry that supersede cultural identity or basic human rights with respect to the dead or religion. Clearly, in some final analysis, beyond legislation, every person who works in a museum or is in any way involved with cultural property must grapple with those kinds of questions and come to some kind of resolution and position, regarding not just the law but also what's right, and why is it a greater benefit to obtain knowledge for a culture which is not the culture that originally produced the objects.
Let me just add a point that's very clear after sitting through testimony across the nation, from both scientists and Native Americans. The question of identity and the question of religion are not abstract questions. They bear directly on people's health. They bear directly on the capability of individuals to avoid problems of alcoholism. They deal directly with issues of suicide. They are not remote--if you will "academic"--issues at all. They have a very real grounding in human experience and survival. The questions legally are much simpler in the end, but ethically one has to determine how you balance out completely different ways of looking at the world and our relationship to it.
International Repatriation of Sacred Objects
Let me move now to another set of issues which relates to international repatriation claims. In effect, we have both within nations and cultures the movement historically of objects that follow the path of the winners in conflicts and wars or the path of those who economically have the greatest power at a given point in time. There's a very strong market--a substantial part of it illicit--in material from cultures around the world or past civilizations. And museums have, frankly, in the past, within even the last thirty years, been involved with that sort of trade in order to build their collections.
There are many cases current today, and I'm sure they will continue, in which things have not been returned in spite of requests by nations or governments that they be returned. In some instances, such returns would almost guarantee that some bureaucrat in some nation, who was in the cultural division, would have his or her pockets lined. In other instances, it's far from clear what would happen to the material, and it's far from clear who in fact has a right of possession. So there's a whole variety of difficult issues on one side, and on the other side much tighter standards that must be put in place today, whether it's with respect to art stolen by the Nazis or whether it's with respect to illegal archaeological digs. Most often things are simply mined quite illegally, there's no information collected, things are just taken out of the ground of context and removed for their market value. Museums simply cannot be harried of that process any longer.
