The Concept of “Cultural Affiliation” in NAGPRA: Its Potential and Limits in the Global Protection of Indigenous Cultural Property Rights

Abstract

AbstractIn 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 organizations 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 that have 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 (UNDRIP) of 2007 stipulates a similar emancipation of indigenous peoples' cultural property claims from notions of property and ownership. This article explores NAGPRA's cultural affiliation concept as it stands between private property and human rights law and brings into focus the concept's elements that go beyond traditional property law. It ultimately looks at the potential and limits of the concept from an international perspective as a standard for other countries that consider implementation of UNDRIP's provisions on indigenous, tangible, movable cultural property.