National Museum of the American Indian Act (“Museum Act”)
The Museum of the American Indian Act of 1989 governs repatriation of cultural items by the Smithsonian Institution.
Originally, the Act covered only human remains and funerary objects and provided for repatriation of all such items upon a showing of cultural affiliation. Amendments to the Act in 1996 modified it to extend coverage of the Museum Act to sacred objects and cultural patrimony based upon standards similar to those of NAGPRA. There are some differences between NAGPRA and the Museum Act and inconsistencies between the original 1989 Museum Act and the 1996 amendments, however, which could be important.
For example, the original Museum Act provided for the repatriation of unassociated funerary objects to Indian tribes simply upon showing of cultural affiliation. The 1996 amendments made the "right of possession" rule in NAGPRA applicable to the repatriation of unassociated funerary objects, but did not repeal the original section which did not require a "right of possession" showing.
In addition, the 1996 Museum Act amendments provide no definitions of "sacred objects" and "cultural patrimony." The NAGPRA definitions were probably presumed. However, because the NAGPRA definitions are somewhat narrow and have been controversial, the meaning of these terms in the context of the Museum Act may be disputed. Moreover, there is only one definition of "funerary objects" in the Museum Act, rather than separate definitions for "associated" and "unassociated" funerary objects, even though the new amendments make this distinction an important one.
The Museum Act also does not include the "scientific study" and "conflicting claims" exceptions to repatriation, as does NAGPRA, nor does it specifically address a number of other issues covered by NAGPRA such as access to information and evidence that may be used to prove cultural affiliation. It does provide for a Smithsonian Special Committee on Repatriation, however, consisting of 7 members - 4 are chosen from tribal nominations and at least 2 must be traditional Indian religious leaders. This Committee is available to review repatriation decisions and is supposed to "ensure fair and objective consideration of all relevant evidence."
Further inconsistencies are present in the case of Native Hawaiians. The 1989 Act provided for negotiations concerning the repatriation of human remains and funerary objects between the Office of Hawaiian Affairs, Hui Malama I Na Kupuna O Hawai'i Nei and the Smithsonian, but indicated that the same principles of repatriation pertaining to Indian tribes should apply to the negotiations. The new repatriation section on unassociated funerary objects, sacred objects and cultural patrimony fully applies to Native Hawaiians. This creates the confusing situation in which repatriation of human remains and associated funerary objects is governed by a negotiated agreement, but repatriation of other objects is controlled by a specific legal standard.
Thus, although similar to NAGPRA, the Museum Act raises some unique issues where repatriation is sought from the Smithsonian.
Originally, the Act covered only human remains and funerary objects and provided for repatriation of all such items upon a showing of cultural affiliation. Amendments to the Act in 1996 modified it to extend coverage of the Museum Act to sacred objects and cultural patrimony based upon standards similar to those of NAGPRA. There are some differences between NAGPRA and the Museum Act and inconsistencies between the original 1989 Museum Act and the 1996 amendments, however, which could be important.
For example, the original Museum Act provided for the repatriation of unassociated funerary objects to Indian tribes simply upon showing of cultural affiliation. The 1996 amendments made the "right of possession" rule in NAGPRA applicable to the repatriation of unassociated funerary objects, but did not repeal the original section which did not require a "right of possession" showing.
In addition, the 1996 Museum Act amendments provide no definitions of "sacred objects" and "cultural patrimony." The NAGPRA definitions were probably presumed. However, because the NAGPRA definitions are somewhat narrow and have been controversial, the meaning of these terms in the context of the Museum Act may be disputed. Moreover, there is only one definition of "funerary objects" in the Museum Act, rather than separate definitions for "associated" and "unassociated" funerary objects, even though the new amendments make this distinction an important one.
The Museum Act also does not include the "scientific study" and "conflicting claims" exceptions to repatriation, as does NAGPRA, nor does it specifically address a number of other issues covered by NAGPRA such as access to information and evidence that may be used to prove cultural affiliation. It does provide for a Smithsonian Special Committee on Repatriation, however, consisting of 7 members - 4 are chosen from tribal nominations and at least 2 must be traditional Indian religious leaders. This Committee is available to review repatriation decisions and is supposed to "ensure fair and objective consideration of all relevant evidence."
Further inconsistencies are present in the case of Native Hawaiians. The 1989 Act provided for negotiations concerning the repatriation of human remains and funerary objects between the Office of Hawaiian Affairs, Hui Malama I Na Kupuna O Hawai'i Nei and the Smithsonian, but indicated that the same principles of repatriation pertaining to Indian tribes should apply to the negotiations. The new repatriation section on unassociated funerary objects, sacred objects and cultural patrimony fully applies to Native Hawaiians. This creates the confusing situation in which repatriation of human remains and associated funerary objects is governed by a negotiated agreement, but repatriation of other objects is controlled by a specific legal standard.
Thus, although similar to NAGPRA, the Museum Act raises some unique issues where repatriation is sought from the Smithsonian.
