THE INDIGENOUS MCCLAIN DOCTRINE: A NEW LEGAL TOOL TO PROTECT CULTURAL PATRIMONY AND THE RIGHT TO SELF-DETERMINATION.

Author:Birkhold, Matthew H.
 
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ABSTRACT

In December 2010, the United States endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which obligates the United States to respect indigenous self-determination and protect Native American cultural objects. Yet, nearly a decade later, the United States has made little progress to meet these commitments, resulting in growing frustration in the indigenous and international human rights communities. At its 2017 meeting on the implementation of UNDRIP, the U.N. expert group condemned the United States for its inaction. But the failure to act is not the result of indifference. Current U.S. law makes it impossible for the United States to satisfy its human rights obligations.

This Article identifies a paradoxical conflict resulting from the dual obligation imposed by UNDRIP: the current statutory scheme for protecting indigenous cultural property in America (NAGPRA) actually undermines tribal self-determination. By carefully analyzing NAGPRA case law, this article shows that non-indigenous judges, lawyers, and defendants identify what constitutes Native Americans' cultural property. Tribal law represents the ideal legal scheme for respecting self-determination, but tribal criminal law cannot be extended over non-Indians, making it an ineffectual safeguard of cultural heritage. The seeming irreconcilability of these two goals amounts to 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?

This article offers an innovative solution by applying art law jurisprudence to Federal Indian law. Specifically, this article argues that the paradox can be resolved by utilizing the legal instrument deployed to address stolen foreign cultural property (the McClain doctrine) in the domestic context. This Article proposes a new legal tool: the "indigenous McClain doctrine, " which effectively extends criminal tribal jurisdiction over non-Indians in cases involving stolen Native American cultural property, thereby resolving the conflict and meeting America's obligations under UNDRIP. Importantly, this article demonstrates that the "indigenous McClain doctrine" faces no jurisprudential bar--despite the prohibition of extending tribal criminal law to non-Indians--and it makes recommendations on how to achieve its implementation.

Table of Contents Introduction I. America's Dual Commitment to Indigenous Peoples II. NAGPRA A. Case Law 1. Corrow 2. Tidwell 3. Kramer B. Shortcomings of NAGPRA 1. NAGPRA Frustrates the Free Exercise of Cultural Self-Determination 2. NAGPRA Does Not Dependably Protect Indigenous Cultural Property III. A Tribal Law Approach IV. The McClain Doctrine A. The National Stolen Property Act B. Cultural Property Case Law and the McClain Doctrine 1. Hollinshead 2. McClain 3. Schultz V. The Indigenous McClain Doctrine: Solving the Indigenous Cultural Patrimony Problem A. The Solution B. Full Respect for Cultural Self-Determination C. Equal Value for Native American and Foreign Cultures D. No Jurisprudential Bar Next Steps and Conclusion INTRODUCTION

The United States is not fulfilling its obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). (1) 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." (2) 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. (3) 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. (4) As a robust marketplace for foreign cultural objects, (5) 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 (CPIA6) and the National Stolen Property Act (NSPA). (7) But less congressional and scholarly attention has been devoted to America's position as a "source nation," rich in Native American cultural objects. (8) 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. (9) 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. (10) 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). (11) 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.

  1. AMERICA'S DUAL COMMITMENT TO INDIGENOUS PEOPLES

    By endorsing UNDRIP in December 2010, the United States assumed a new set of goals relating to Native Americans and indigenous cultural property. (12) Although the Declaration is a not a legally-binding instrument under international law, as an official United Nations statement, it carries considerable moral and political force meant to guide signatories' domestic policies. (13) In forty-six articles, the Declaration enumerates the rights of indigenous peoples and sets an agenda for the United States to "design a reasonable approach to a progressive realization of the duties and responsibilities in it." (14) Consequently, current and future laws concerning Native Americans should be measured against the rights outlined in UNDRIP; if they fail to satisfy the requirements of the Declaration, they should be accordingly adjusted. (15) Nevertheless, over the past six years, the United States has not satisfied its responsibilities. This Part briefly outlines the dual obligations the United States assumed by endorsing UNDRIP.

    An important right outlined by UNDRIP in Article 3 is the right of indigenous peoples to self-determination, by virtue of which they may "freely determine their political status and freely pursue their economic, social and cultural development." (16) Article 4 affirms that part of exercising self-determination includes the right to autonomy or free government. (17) Notably, the right to self-determination is linked to the free development of indigenous culture, including the "right to maintain, protect and develop the past, present and future manifestations of [indigenous] culture[], such as archaeological and historical sites, [and] artefacts." (18) Article 31 explicitly establishes the right of indigenous peoples to "maintain, control...

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