Karolina Kuprecht Indigenous Peoples' Cultural Property Claims Repatriation and Beyond Indigenous Peoples’ Cultural Property Claims ThiS is a FM Blank Page Karolina Kuprecht Indigenous Peoples’ Cultural Property Claims Repatriation and Beyond Karolina Kuprecht Faculty of Law University of Lucerne Lucerne Switzerland ISBN 978-3-319-01654-2 ISBN 978-3-319-01655-9 (eBook) DOI 10.1007/978-3-319-01655-9 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2013954594 © Springer International Publishing Switzerland 2014 This work is subject to copyright. 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Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) Preface and Acknowledgements This book is the outcome of a multi-year journey that started at the University of California Los Angeles (UCLA) in 1999. Inspired by Professor Kurt Siehr and supervised by Professor Carole Goldberg, I first approached the question of Native American cultural property claims with a case study regarding the rights to a Lakota ghost dance shirt and the skull of an Arikara Indian, which are both in the possession of the North America Native Museum in Zurich. Today, I am happy to present a work that applies a more abstract methodology and a broader perspective on international cultural property repatriation claims of indigenous peoples. This enabled me to extend the evaluation of the legal bases and to work out some general principles and suggestions as to how the international community and European states could better deal with indigenous peoples’ cultural property repatriation claims. I hope that the insights will contribute to a positive development of research and practice in cultural property law. This work is dedicated to the indigenous peoples. The multilayered meanings and purposes of their cultural objects in an indigenous context not only formed the grounds of this research; they equally influenced my thoughts and perceptions and fundamentally challenged my understanding of law. I am grateful for the lessons learned that allowed me to work on building bridges between indigenous and western world views. My deepest thanks go to my parents for their steady backing and love throughout the research process. Several other persons shared the living with and working on this book with me. The most trustful and highly qualified support, however, came Benno Widmer. Thank you very much. Professionally, I would like to acknowledge and thank Professor Christoph Graber. This work formed part of his research project ‘International trade in indigenous cultural heritage: Legal and policy issues’ at the i-call research centre of the University of Lucerne. In the realm of this project funded by the Swiss National Science Foundation, I encountered an inspiring scientific exchange, an excellent working environment, and an awesome team of colleagues. Jessica Lai, Angela Hefti, Martin Korrodi, Andrea Kerekes, Monika Guggenbu¨hl, and Antoinette Maget Dominice´ all contributed in one way or another to this work. v vi Preface and Acknowledgements Liz Obee edited the English language, and Steven Howe helped with some final linguistic revisions. Further, I would like to mention the many valuable inputs and constant motivation from the esteemed professors and colleagues who initiated and participated in the seminars and conferences of Kunst & Recht, IFKUR, the Centre du Droit de l’Art, and the Forschungsgesellschaft Kunst und Recht. Many thanks to you all. And finally, I thank Brigitte Reschke and Anand Venkatachalam and their German and Indian teams, who realised the publication of this book. Luzerne, Switzerland, 2013 Karolina Kuprecht Abbreviations ARPA United States Archaeological Resources Protection Act ATADA Antique Tribal Art Dealers Association BIA United States Bureau of Indian Affairs CCPR International Covenant on Civil and Political Rights CESCR International Covenant on Economic, Social and Cultural Rights CPEIA Canadian Cultural Property Export and Import Act CPTA Swiss Federal Act on the International Transfer of Cultural Property FPIC Free, prior and informed consent GAO Report United States Government Accountability Office Report to Congressional Requesters of July 2010 ICOM International Council of Museums ICOM Code of Code of Ethics of Museums issued by the International Ethics Council of Museums IGCs Intergovernmental Committees on Intellectual Property and Genetic Resource, Traditional Knowledge and Folklore ILA International Law Association ILO International Labour Organization ILO Convention 107 ILO Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries ILO Convention 169 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries IRA United States Indian Reorganization Act Nagoya Protocol Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity NAGPRA United States Native American Graves Protection and Repatriation Act vii viii Abbreviations NGO Non-governmental organisation NHM London Natural History Museum NMAI United States National Museum of the American Indian OFA United States Office of Federal Acknowledgement within the Department of the Interior SPIL Swiss Private International Law Act of 198. TAC Tasmanian Aboriginal Centre TCE Traditional cultural expressions TK Traditional knowledge UCLA University of California Los Angeles UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations UN Working Group United Nations Working Group on Indigenous Populations UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNESCO United Nations Educational, Scientific and Cultural Organization UNESCO UNESCO Convention on the Means of Prohibiting and Convention 1970 Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property UNESCO UNESCO Convention for the Safeguarding of the Convention 2003 Intangible Cultural Heritage UNESCO UNESCO Convention on the Protection and Promotion of Convention 2005 the Diversity of Cultural Expressions UNIDROIT UNIDROIT Convention on Stolen or Illegally Exported Convention 1995 Cultural Objects UNPFII United Nations Permanent Forum on Indigenous Issues WIPO World Intellectual Property Organization Contents 1 Introduction ........................................... 1 2 Facts, Method, and Basic Concepts .......................... 5 2.1 The Factual Background . 5 2.1.1 The One-Way Flow of Indigenous Cultural Property . 5 2.1.2 Indigenous Cultural Property Takings . ............... 7 2.2 Methodology ....................................... 17 2.2.1 The Problem of Legal Pluralism . 17 2.2.2 The Necessity to Choose ......................... 18 2.2.3 Legal Pluralism as a Method ...................... 20 2.3 Basic Concepts and Challenges . ....................... 23 2.3.1 Indigenous Peoples . ............................ 23 2.3.2 Indigenous Cultural Property . ................... 39 2.3.3 Indigenous vs. Western World Views . ............. 46 3 National Cultural Property Repatriation Claims of the Native Americans .................................. 55 3.1 The Legal Approach in the United States . 55 3.1.1 NAGPRA and Its Concept of Cultural Affiliation ....... 55 3.1.2 NAGPRA and Human Rights Law . ................. 59 3.1.3 NAGPRA and Property Law . 62 3.2 Assessment . ..................................... 64 3.3 NAGPRA from an International Perspective ................ 68 3.3.1 Can Cultural Affiliation Serve as a Standard Beyond United States’ Law? .................................. 68 3.3.2 Factors to be Considered when Implementing Cultural Affiliation . 68 3.3.3 Limitations to be Considered when Implementing Cultural Affiliation . 70 3.4 Conclusions . 73 ix x Contents