Tipping NAGPRA's Balancing Act: The Inequitable Disposition of 'Culturally Unidentified' Human Remains Under NAGPRA's New Provision

William Mitchell Law Review, Vol. 37, pp. 2046-2096, 2011

51 Pages Posted: 11 Jan 2012

See all articles by Matthew H. Birkhold

Matthew H. Birkhold

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: September 10, 2011

Abstract

To prevent museums and federal agencies from perpetually holding Native American remains, the Native American Graves Protection and Repatriation Act (25 U.S.C. §§ 3001–3013 (2006)) was amended to delineate procedures for the disposition of culturally unidentified Native American human remains. By evaluating the new rule’s impact on so-called “unidentified” remains, this article interrogates the notion that the new regulation is an effectively undermines NAGPRA’s core principles. By treating culturally unaffiliated remains as one monolithic category, the new rule discounts Native American rights, disadvantages museums, mistreats remains, and disenfranchises Native American groups from controlling their own cultural identities. In sum, the new rule capsizes NAGPRA’s balancing act to the detriment of all the diverse interests invested in Native American human remains.

Because the most straightforward solution is infeasible (that is, repatriating so-called “unidentified” remains bearing a “significant relationship” to non-federally-recognized tribes directly to those tribes) this article concludes by devising an alternative rule that differentiates the various categories of “unidentified” remains, thus circumventing the unjust effects of the new rule, while still eliminating the “timeless limbo” in which many remains are being held.

Suggested Citation

Birkhold, Matthew Hoover, Tipping NAGPRA's Balancing Act: The Inequitable Disposition of 'Culturally Unidentified' Human Remains Under NAGPRA's New Provision (September 10, 2011). William Mitchell Law Review, Vol. 37, pp. 2046-2096, 2011. Available at SSRN: https://ssrn.com/abstract=1982590

Matthew Hoover Birkhold (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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