Right of Possession: A Comparative Legal Analysis of NAGPRA

Repatriation attempts to reconcile opposing values regarding human skeletal remains. Repatriation has sometimes been contentious because it raises the question of which aspect of human remains is more important, cultural or scientific values. Repatriation is also an issue of power. The Native American Graves Protection and Repatriation Act (NAGPRA) provides a procedural framework with which to negotiate power relationships between scholars, tribes, and the U.S. government. Property rights are integral to power, as the holder controls the use of and access to and interpretation of indigenous skeletal remains. Property rights concerning Native American human remains are an integral part of indigenous cultural self-representation. Property rights over human remains are part of the struggle of Native American communities for political and cultural sovereignty. Applying the concept of ownership to human remains is controversial, however, because such rights determines who controls access and interprets human remains and associated cultural materials. NAGPRA is a multifaceted law that strives to address the issue of possession of indigenous human remains and cultural objects. NAGPRA draws upon many aspects of the American legal system, such as property, constitutional, and tribal sovereignty law. The Act has equally complex regulations, some of which have sparked controversy and animosity between repatriation advocates and opponents. This thesis creates a legislative history of NAGPRA by examining the socio-historical processes that lead up its passage. The Act has been described as a property law, a procedural law, and as human rights legislation. The Act is partly all of these, which creates conflict in interpreting and applying its regulations. This thesis addresses the need for an examination of NAGPRA through the various fields of law that make up its legislative history and legal framework. This thesis will also examine the different legal aspects of the Act, such as property law and tribal sovereignty. Repatriation polices and case studies from the United States and abroad will be briefly discussed to examine NAGPRA in an international context