The Concept of “Cultural Affiliation” in NAGPRA: Potentials and Limits from an International Perspective

Abstract

In the debate about indigenous cultural property, the Native American Graves Protection and Repatriation Act (NAGPRA) of the United States has developed and implemented an unorthodox concept of “cultural affiliation”. The Act entitles Indian tribes and Native Hawaiian organisations to claim repatriation of their cultural property – comprising human remains, funerary objects, sacred objects and objects of cultural patrimony – upon the establishment of a specific shared group identity and a cultural affiliation to an object. The concept of cultural affiliation in the Act replaces proof of ownership, or proof that an object was stolen or illicitly removed. It thereby amends traditional standards saturated in notions of property and ownership as perpetuated since Roman law, and allows the evolution of a control regime over cultural property that takes into account the cultural aspects of the objects. On an international level, the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) stipulates a similar emancipation of indigenous peoples’ cultural property claims from notions of property and ownership. This paper explores NAGPRA’s cultural affiliation concept as it stands between private property and human rights law. It brings into focus the concept’s elements that go beyond traditional property law. Finally, it looks at the potential and limits of the cultural affiliation concept for implementing UNDRIP’s provisions on indigenous tangible, movable cultural property in other countries.