NAGPRA and Commodification of Cultural Property: A Legal Mechanism to Prevent Its Transfer to Europe and Return to the Native Nations

Abstract

The movement for restoration of Native American cultural property began with the enactment of the American Indian Religious Freedom Act 1978 followed by the Native American Graves Protection and Repatriation Act 1990 (NAGPRA). However, the federal legislation has been restricted because the desecrations of graves and funeral artifacts have continued to be appropriated and transferred from the reservations to their destinations in museums and auctions houses abroad. They have mostly ended up in Europe and are displayed against the will of the Native tribes from whose lands they have been moved. The domestic legal umbrella of NAGPRA does not provides protection when cultural property is resident abroad and the framework of ‘soft’ international law such as the United Nations Educational, Scientific and Cultural Organisation Convention (UNESCO) Convention and UNIDROIT Convention are not sufficient to facilitate their repatriation. The preventative extraterritorial legal regime has not been successful in transferring cultural property and there needs to be an improved mechanism devised to apprehend and to repatriate them to the original owners. This article argues for a framework that is international and which imposes sanctions when the iconographic property that is stolen is moved and is stored or sold for monetary gain and for its return to the rightful owners.