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Excerpted from: Matthew H. Birkhold, The Indigenous McClain Doctrine: A New Legal Tool to Protect Cultural Patrimony and the Right to Self-determination, 97 Washington University Law Review 113 (2019) (288 Footnotes) (Full Document)


MatthewHBirkholdThe United States is not fulfilling its obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In particular, since endorsing the groundbreaking human rights Declaration in 2010, the United States has failed to adequately protect Native American cultural objects and respect Native Americans' right to self-determination. These shortcomings have recently been the subject of frustrated discussion at the United Nations. The U.N. expert group, convened in January 2017 to assess the implementation of UNDRIP, described the United States' "reluctan [ce] to make a high-level commitment to indigenous rights instruments." The United States' unwillingness, though, is not the result of indifference, but rather the consequence of a legal conundrum: the current federal statutory scheme safeguarding indigenous cultural objects actually undermines self-determination, and the laws that would best respect self-determination would prove ineffective safeguards of these objects. This Article offers a solution. Without requiring new legislation or statutes, this Article provides a path for the United States to easily comply with UNDRIP and realize its ostensibly opposed obligations.

The United States has long been a champion of cultural objects, helping to prevent their looting, regulate their flow, and curb the adverse consequences of their illicit trafficking. As a robust marketplace for foreign cultural objects, the United States has developed several legal mechanisms for dealing with stolen cultural objects imported into the country, including the Convention on Cultural Property Implementation Act (CPIA) and the National Stolen Property Act (NSPA). But less congressional and scholarly attention has been devoted to America's position as a "source nation," rich in Native American cultural objects. Like cultural artifacts abroad, Native American objects are subject to destructive plundering and trade. And there is little doubt that these objects are as priceless as those trafficked from abroad.

Following years of an "apathetic posture" toward controlling its own indigenous cultural property, the United States is now committed to protecting its domestic cultural heritage. The United States' affirmation of UNDRIP has obligated the United States to rethink its laws governing Native Americans and their cultural heritage to fully respect the right to self-determination. To do so requires lawmakers and judges to allow indigenous communities to define what items constitute their cultural patrimony. Such a decision made outside the group wrongly circumscribes this right. As the United States redoubles its commitment to safeguarding indigenous cultural property, this Article looks to the legal mechanisms developed in response to international looting to meet the seemingly paradoxical goals articulated in UNDRIP.

Part I of this Article briefly summarizes the importance of cultural property and the decisive role its protection plays in respecting indigenous rights. This Part identifies America's dual commitment to Native Americans: protecting their cultural objects and respecting their self-determination.

Part II analyzes the current legal framework safeguarding indigenous cultural property in America, focusing on the Native American Graves Protection and Repatriation Act (NAGPRA). This Part also explains why the current statutory scheme fails to satisfy America's new policy goals concerning the protection of indigenous rights. The harms are not theoretical. Although tribes "win" under NAGPRA, they ultimately lose because they must surrender their cultural sovereignty to prevail in court.

Part III next discusses tribal law as the ideal legal scheme for meeting these goals. Expounding the difficulties associated with adopting such a framework, this part questions whether there is a solution to what this article dubs the "indigenous cultural patrimony problem." Can a law effectively protect Native American cultural patrimony while simultaneously respecting the right of indigenous peoples to exercise cultural self-determination?

Through the development of the so-called "indigenous McClain doctrine," this Article argues that such a legal instrument is both conceivable and implementable. More broadly, this Article demonstrates that it is possible to pass effective legislation advancing Native American self-determination that is consistent with broader U.S. policy goals.

After turning to the NSPA and the McClain doctrine in Part IV, Part V contemplates the possibility of applying the legal instrument used to deal with stolen foreign cultural property to the domestic context, highlighting the favorability of such an approach. Finally, potential difficulties and recommendations are explored in the Article's conclusion, offering a new way of both protecting indigenous cultural property and meeting the goals of UNDRIP.

[. . .]

Although implementing the indigenous McClain doctrine satisfies America's new dual commitment to safeguard Native American cultural objects and respect the right to cultural self-determination, applying the framework to tribal patrimony laws raises several questions.

Perhaps the most immediate concern is that most tribes in the United States do not have cultural patrimony laws. Before the McClain doctrine can recognize theft of Native American cultural objects as "stolen" under the NSPA, tribal laws must first define what constitutes a tribe's patrimony and vest ownership of the objects in the tribe, criminalizing unpermitted excavation and removal. In her 2010 study of tribal codes, Angela Riley found that only some fourteen percent of the tribes studied had laws addressing cultural preservation and protection, including cultural patrimony laws.

The relative dearth of tribal cultural patrimony laws, however, could be advantageous. Today, tribes could tailor their patrimony laws with knowledge of which foreign laws met the requirements delineated by the McClain court. In addition to identifying which objects constitute their cultural patrimony, Native American groups could devise laws that clearly and unambiguously establish tribal ownership, ensuring the laws would be recognized by U.S. courts. But it is questionable whether requiring tribes to tailor tribal cultural patrimony laws to meet U.S. legal standards is a more insidious infringement on self-determination than letting U.S. courts decide what constitutes cultural patrimony under NAGPRA.

The Fifth Circuit's requirements raise additional concerns for the practicability of the indigenous McClain doctrine. The McClain doctrine limits its application to objects found within the border of the nation claiming ownership. If foreign patrimony laws are not given extraterritorial effect, what territory can tribal laws be said to govern? If the territorial limit means that tribal cultural patrimony laws would only be applied to objects found on reservations, this framework would provide a more limited protection than NAGPRA, which covers cultural objects found on reservations and federal lands. However, if the indigenous McClain doctrine recognizes the modern border of the United States as the applicable territory, then this framework would provide a robust protection more extensive than NAGPRA because it would cover private and state lands as well.

NAGPRA does have one clear advantage over the indigenous McClain doctrine. While no specific financial or commercial value must be attached to the protected object to trigger NAGPRA's criminal provision, to be convicted under the NSPA the trafficked items must be worth $5,000 or more. In this way, NAGPRA actually offers a more expansive legal protection than applying the framework proposed.

Nevertheless, the indigenous McClain doctrine would allow tribes to decide what is best for them and how best to protect their cultural objects. If tribes so chose, the indigenous McClain doctrine provides an effective mechanism for punishing all looters, Native Americans and non-Indians alike, for violating tribal laws protecting the cultural objects that Native Americans have decided for themselves constitute their cultural patrimony.

Assistant Professor of Law, Moritz College of Law, Ohio State University; former attorney-adviser, Office of the Legal Adviser, U.S. Department of State.

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