Are the Indian Arts and Crafts Act and NAGPRA Good Policy?

Since the 1968 Indian Civil Rights Act, a series of federal laws have granted federally recognized American Indian tribes much greater sovereignty and cultural protections. Between the 1970s and the early 1990s, Congress passed Indian Gaming Regulatory Act, the Indian Arts and Crafts Act (IACA), and the Native American Graves Protection and Repatriation Act (NAGPRA).[1]

IACA acts a truth in marketing law, subjecting individual violators to fines of up to $250,000 and corporate violators to fines of as much as $1 million for falsely representing products as Indian made.[2] The statute provides for strict liability with little room for a defense and encompasses even non-federally recognized state recognized tribes. Id. IACA is usually measured by the benchmark of federally recognized tribes. As a result, some artists who are of Indian descent but not registered tribal members cannot list their work as Indian made. Additionally, there is no control on which Indian group can claim something is Indian made, resulting in a feud between the Hopi and Navajo over Navajo production of traditional Hopi dolls.[3]

NAGPRA, passed in 1990 requires federally funded research institutes and museums to hand over Indian human remains and cultural artifacts to Indian tribes found on federal land and tribal land. Id. at 402. 18 U.S.C. § 1170 imposes criminal penalties, including imprisonment for up to five years for “Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession to those remains as provided in the Native American Graves Protection and Repatriation Act.” NAGPRA reaches very broadly to include even artifacts acquired before the statute was passed.[4]

One of the biggest NAGPRA contests to date involved “Kennewick Man” a 9000-year-old intact skeleton from Inland Washington dating to 9000 years ago. Archaeologists ultimately prevailed in being able to study Kennewick Man because Indian tribes failed to provide enough evidence to show the skeleton was Indian—Kennewick Man was ultimately reburied by tribes. Id. at 411.

Writing on the subject in 2017, Andrew Minikowski argued that NAGPRA should be amended to (1) grant custody presumption to historic rather than currently landowning tribes, and (2) “allow for a balancing test between scientific study and cultural repatriation.”

In Article I, the Indian Commerce Clause contains the same use of “with” as found in the Foreign Commerce Clause strongly suggesting that Congress saw its dealings with Indians as dealings with foreign nations. That is for the most part the view taken in subsequent cases, holding that Indian tribes are domestic dependent nations. Under the reasoning in Morton v. Mancari from 1974, Indian is not a racial classification, but a political classification like residency in a state jurisdiction. Under this model, Indians are essentially citizens of two nations: the United States and their tribe. Unlike the US, the tribal government can determine who qualifies as a member and strip membership away. Together with the military, Indians represent an exception to equal protection.

NAGPRA’s application to culture reaches much further than protections for non-Indian remains and cultural artifacts. Traditionally, many states had both a common law and statutory graverobbing offense. Virtually all cases date to 19th century body snatching and with rare exceptions exclude cemetery association and public official approved disinterment.[5] By essentially creating a group property right in Indian art and artifacts, the federal government has privileged some forms of heritage over others.

IACA and NAGPRA may be constitutional under the Interstate Commerce Clause, Indian Commerce Clause, and Property Clause (prior to NAGPRA Indian remains were considered federal property under the Antiquities Act of 1906). Preserving cultural heritage is an important goal, but there are policy implications to privileging Indian tribes over others, especially when there are not similar protections for more recent non-Native American cultural heritage. IACA and NAGPRA are concerning to the extent that they may hamper research and give certain tribes a privileged position to claim cultural heritage and bodies over other tribes. This is especially concerning given the mobility of many Indian groups throughout history and prehistory. There is no easy mechanism to assign cultural heritage to current day tribes, especially where multiple tribes shared an area and likely derived from earlier groups—a concern especially significant in context of very old Paleoindian and Archaic burial sites from thousands of years ago.

Preserving cultural heritage poses vexing questions. In extreme forms, it can be a vague “third generation” group rights claim that actually harms both understanding of the past and the rights of other groups. Some degree of protection is likely needed for cultural artifacts to prevent destruction through chaotic treasure hunting, but whether IACA and NAGPRA are the best approach is a question policymakers must consider.

References [1] Andrew Minikowski, The Creation of Tribal Cultural Hegemony Under the Indian Arts and Crafts Act and Native American Graves Protection and Repatriation Act, 92 N.D. L. Rev. 397, 399 (2017) (hereinafter Minikowski). [2] Minikowski, at 400-401. [3] Id. at 406-407. [4] Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936, 939-40 (10th Cir. 1996). [5] Construction and application of graverobbing statutes, 52 A.L.R.3d 701 (2022).