Suzianne D. Painter-Thorne
Excerpted from: Suzianne D. Painter-Thorne, Contested
Objects, Contested Meanings: Native American GraveProtection 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.