Insiders and Outsiders: the Case for Alaska Reclaiming Its Cultural Property

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 29

§ 29 Alaska L. Rev. 113. INSIDERS AND OUTSIDERS: THE CASE FOR ALASKA RECLAIMING ITS CULTURAL PROPERTY

Alaska Law Review
Volume 29, No. 1, June 2012
Cited: 29 Alaska L. Rev. 113

INSIDERS AND OUTSIDERS: THE CASE FOR ALASKA RECLAIMING ITS CULTURAL PROPERTY

Rebecca Kitchens ^[*]

Abstract

Because of the historically troubling treatment of American Indians by the United States government, the nation's native populations have been largely unable to control their cultural identities. Cultural property laws provide a framework for transferring stolen art and cultural objects to their native owners in an attempt to return cultural sovereignty to native communities. Despite Alaska's large and thriving native population, Alaska Natives have trailed behind other states' native populations in asserting their cultural property rights. This Note considers the current cultural property framework and its evolution in an effort to understand why Alaska Natives are not seeking return of their cultural objects to the same extent as other native groups.

Introduction

Years of oppression and unfair treaties have strained American Indians' relationship with the United States government ^[1] and have hampered their ability to control their cultural identities. Since the arrival of Europeans in the United States, settlors have taken land, cultural objects, funerary remains, and other tangible objects from their original American Indian owners. With these objects went American Indians' cultural sovereignty and freedom to tell their stories through art and cultural objects. In many cases, objects acquired by European settlers have been displayed in museums beyond the control of American Indian audiences, thereby excluding American Indian perspectives. ^[2]

Alaska Natives endured maltreatment along with their mainland counterparts. ^[3] Alaska Native art and cultural objects were taken from their creators. ^[4] For centuries, Alaska Native artists have created carvings, baskets, dolls, drums, prints, etchings, and other art forms to express religious and cultural identity. ^[5] A number of materials used, such as flexible jaw material from baleen whales and Alaskan mammal furs, are not only visually appealing but also important from educational and art historical perspectives. ^[6] Objects made from these materials reveal much about the history of Alaska Native groups and their traditional lifestyles and cultures. ^[7] Techniques employed by Alaska Native artists, such as serigraphy ^[8] and relief carving, are central to both art history and education. ^[9]

Modern cultural property laws were enacted in part to celebrate American Indians' unique art forms and their respective cultures ^[10] as well as to compensate native communities for past injustices. ^[11] Cultural property laws also give native communities a means of regaining control over their cultural property and cultural identities. ^[12] Unlike some native tribes in the contiguous states, Alaska Natives have not taken advantage of these laws to their full potential. Only a small number of Alaska Natives have sought recovery of stolen art, and those that have done so hail primarily from the largest Alaska Native cultures.

Now more than ever, considering Alaska Natives' position in the cultural property discourse is critical. Legislation in 1990 ushered in a modern cultural property framework, ^[13] but this area of law remains largely unsettled and many issues have not yet been addressed. The national attention focused on American Indian cultural property laws has increased since the 1970s, and this area is likely to become more important in coming years. Although Alaska has a large and thriving native population, Alaska Natives have been relatively silent in this discourse. Alaska Natives' silence may limit their ability to control their cultural destiny into the future, and it suggests problems inherent in the current legal framework. The current cultural property regime does not treat all native groups equally; while American Indians as a group are generally viewed as "outsiders" to the cultural property discourse, some native groups are further limited in their ability to use the laws.

This Note considers the evolution and current status of cultural property law. It also considers why Alaska Natives are not as active as some other native groups in asserting cultural property rights. Part I gives an overview of American Indian cultural property's position in the larger cultural property discourse. Part II discusses the development of American Indian cultural property rights with an overview of the relevant statutes. Part III describes the complexity surrounding NAGPRA, the most important law pertaining to American Indian cultural property. Part IV discusses Alaska Natives limited utilization of NAGPRA and the importance of Alaska Native cultural property. Part V considers possible explanations for Alaska's relative silence in the cultural property discourse. Part VI considers affirmative steps Alaska Natives could take to assert cultural property rights.

I. American Indian Art in Cultural Property Legal Discourse

Before considering the relationship between American cultural property law and Alaska Native art, this Note considers the placement of American Indian art within cultural property law more generally. Although terms such as "cultural property" and "repatriation" can be defined broadly enough to encompass American Indian art, an inspection of key definitions reveals that American Indian art was not initially included within the protected class of cultural property.

Black's Law Dictionary, which places cultural property within the category of international law, defines "cultural property" as:

Movable and immovable property that has cultural significance, whether in the nature of antiquities and monuments of a classical age or important modern items of fine arts, decorative arts, and architecture. Some writers prefer the term cultural heritage, which more broadly includes intangible cultural things such as folklore, crafts, and skills. ^[14]

The definition's first clause, "moveable and immovable property that has cultural significance," ^[15] delineates art protected by cultural property laws from art beyond protection. The criterion for protection is "cultural significance," ^[16] requiring courts to judge art's importance. This contrasts with other American legal traditions that aspire to view art forms as equal. ^[17] Copyright law, for example, theoretically applies to all art fixed in a tangible medium of expression so long as the art meets a threshold originality requirement. ^[18] Judges are not meant to inquire into the underlying value of the art. ^[19]

The cultural property definition also gives examples of protected art forms, listing "antiquities and monuments of a classical age or important modern items of fine arts, decorative arts, and architecture." ^[20] Using the phrase "classical age" suggests a traditional American legal view of defining what cultural property is important historically. By including "important modern works," ^[21] the definition reinforces the burden of judging a work's importance. Significantly, the definition places cultural property law squarely into the category of international law, reflecting a traditional view that foreign objects are more highly valued from a cultural property perspective than those created locally.

Because this Note focuses on cultural property in the context of American Indian and Alaska Native art and objects, an additional term must be considered. Repatriation is central to the American Indian cultural property discourse, ^[22] and returning objects represents a tangible means of gauging which objects American law deems central enough to outside societies' cultures to be completely returned. Black's Law Dictionary does not provide a definition for "repatriation," suggesting this area of law may not yet be central in American legal discourse. The National Museum of the American Indian, a branch of the Smithsonian Institution, ^[23] defines "repatriation" as:

[T]he process whereby specific kinds of American Indian cultural items in a museum collection are returned to lineal descendants and culturally affiliated Indian tribes, Alaska Native clans or villages, and/or Native Hawaiian organizations. Human remains, funerary objects, sacred objects, and objects of cultural patrimony are all materials that may be considered for repatriation. ^[24]

"Human remains, funerary objects, sacred objects, and objects of cultural patrimony" ^[25] are terms that are not self-defining. ^[26] Moreover, American Indian religions vary significantly, ^[27] and no single definition will adequately protect every unique culture or religious belief.

Beyond definitions, American Indian cultural property is often in the shadow of international cultural property in the art law discourse. Discussions of art law elites have often overlooked American Indian art, at least historically, and focused on issues surrounding antiquities and Nazi-era art thefts. ^[28] Much of the American legal community remains preoccupied with works created and often sold beyond U.S. borders. The website of the American Bar Association Committee on Art and Cultural Heritage Law ^[29] lists as topics recently considered: "1970 UNESCO Convention and international trade in antiquities, underwater cultural heritage, art works stolen during the...