NAGPRA

Trevor Reed on NAGPRA

Matthew L.M. Fletcher

Trevor Reed has posted “The Intangible NAGPRA,” forthcoming in the Maryland Law Review, on SSRN.

Here is the abstract:

Following a 2023 regulatory update, the Native American Graves Protection and Repatriation Act (“NAGPRA”) of 1990, which recognizes Tribal Nations’ ownership interests in their ancestors and artifacts, now expressly includes a controversial public display right that has shuttered museum displays across the country. Though functionally similar to widely criticized provisions of Italian cultural heritage law, I argue that the new regulations are justifiable given the unique status of Tribal Nations in U.S. constitutional law and Congress’s intent to negotiate a remedy for long-standing human rights abuses.  Indeed, the Intangible NAGPRA is precisely what Tribal representatives on the Congressionally mandated year-long Panel for a National Dialogue on Museum/Native American Relations believed they were working toward in the lead-up to NAGPRA’s passage.  Thus, this paper encourages the continued exercise of Indigenous peoples’ rights to protect their ancestors, belongings, sacred and cultural materials and the corresponding intellectual property rights that pertain to them.

Alex Pearl on NAGPRA

Matthew L.M. Fletcher

M. Alexander Pearl has published “Corporeal Property and the Limits of NAGPRA” in the Fordham Law Review.

Here is an excerpt:

The Native American Graves Protection and Repatriation Act represents a pivotal but incomplete legislative effort to confront the enduring legacy of colonialism in the United States. NAGPRA addresses a specific and deeply troubling consequence of colonialism: the unlawful appropriation of Native American ancestors and cultural items by federal and federally funded institutions. Although it lays a critical foundation for repatriation and a sense of cultural justice, NAGPRA’s effectiveness is constrained by its grounding in Western legal traditions—especially its emphasis on corporeal, material property. To redress a wider range of harms suffered by Native communities, we must look beyond the statute’s current framework and embrace an expanded understanding of property, one that includes intangible rights based
in cultural harms and rights.

Eleventh Circuit Decides Muscogee (Creek) Nation v. Rollin [Hickory Creek]

ilpc

Here is the opinion:

202111643Download

Briefs are here.

Elena Baylis on NAGPRA and Looted Cultural Objects

Matthew L.M. Fletcher

Elena A. Baylis has posted “Looted Cultural Objects,” forthcoming in the Columbia Law Review Forum, on SSRN. Here is the abstract:

In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. But while the United States does not have a law concerning looted foreign cultural objects, it does have a statute governing the repatriation of Native American cultural items and human remains. The Native American Graves Protection and Restoration Act requires museums to return designated Native American cultural objects to their communities – even if they were obtained before the law went into effect. This statute offers a valuable model for repatriating foreign cultural objects that were taken from formerly colonized peoples.

Eleventh Circuit Briefs in Muscogee (Creek) Nation v. Rolin [Hickory Creek]

ilpc

Here:

MCN Brief.pdfDownload
PBCI Brief.pdfDownload
US Brief.pdfDownload
Auburn Brief.pdfDownload

Reply brief TK

Lower court materials here.

Slockish v. Dept. of Transportation Cert Petition

Matthew L.M. Fletcher

Here:

slockish-petitionDownload

Question presented:

Whether the Ninth Circuit’s mootness ruling warrants summary reversal where the panel clearly misapprehended governing law on mootness and on the authority of federal courts to order equitable relief affecting nonparties.

Lower court materials here.

California Federal Court Dismisses Anti-NAGPRA Scholar’s Free Speech Suit

Matthew L.M. Fletcher

Here are the materials in Weiss v. Perez (N.D. Cal.):

16 Motion for Preliminary Injunction

31 San Jose State Motion to Dismiss

32 SJSU Opposition to 16

46 Reply in Support of 16

57 Opposition to 31’\

60 Reply in Support of 31

78-dct-orderDownload

Complaint posted here.

Anti-NAGPRA Scholar Sues San Jose State for Free Speech Violations

Matthew L.M. Fletcher
“Here Come the Anthros”

Here is the complaint in Weiss v. Perez (N.D. Cal.):

1 Complaint

San Jose Mercury News: “San Jose State: Professor smiling with Native American skull ignites fiery debate“

Springer and Weiss: “Responding to Claims of Archaeological Racism“

Akwesasne Notes, March 1971

Ninth Circuit Holds Challenge to Mount Hood Road is Moot Now that Road is Complete

Matthew L.M. Fletcher

Here is the unpublished opinion in Slockish v. FHA.

Briefs here.

Credit: Becket

Ninth Circuit Materials in Slockish v. FHA

Matthew L.M. Fletcher

Here:

Opening Brief

Indian Law Scholars Amicus Brief

Religious Groups Amicus Briefs

Religious Liberty Scholars Amicus Brief

Federal Answer Brief

Reply

Lower court materials here.