Student Essay on NAGPRA and 'culturally unidentified' human remains

Matthew Birkhold has won the National native American Law Students Association's 10th annual writing competition with an assay published in the William Mitchell Law Review. From the Introduction:

In recent years, NAGPRA’s characteristic equilibrium has fallen out of balance. In an effort to restore the law’s equipoise, the Department of the Interior published a new final rule, effective May 14, 2010, delineating procedures for the disposition of culturally unidentified Native American human remains in the possession or control of museums and federal agencies. In this attempt, however, the new law swung too far. By evaluating the new rule’s impact on culturally unidentified human remains, this article interrogates the notion that the new regulation is an “important step toward fulfilling the intent of Congress as expressed in NAGPRA.” Because NAGPRA itself is silent on the appropriate disposition of culturally unidentified remains, the only guidance about the intent of the new law comes from the legislative history of the Act, the Department of the Interior, and the courts. Each source establishes NAGPRA as human rights legislation designed to protect Native Americans’ rights and demonstrate respect for remains while achieving an agreeable counterpoise between the competing interests of the Native American and scientific communities.

Student Note on Orphaned Works and Cultural History

Brianna Dahlberg has posted a student note on orphaned works and access to cultural history in the Southern California Review of Law & Social Justice. From the abstract:

Orphan works are copyrighted works whose owners are difficult or impossible to find. They include a vast number of old works in museums, archives and libraries that are not being commercially exploited by rights holders because they are out-of-print, unpublished or anonymous, but nonetheless have cultural or historical significance. However, if the institutions cannot locate the rights holders, they cannot publish or publicly display these works without risking a copyright infringement lawsuit should the rights holders come forward in the future. This Note addresses a new aspect of the orphan works problem: its disproportionate impact on works created by racial and religious minorities, women, Native Americans and other indigenous people, and the poor. Locating rights holders for early-twentieth century works by these groups tends to be especially difficult for a variety of reasons. Minority and poor white musicians were routinely excluded from performing rights organizations until the 1940s and were less likely to register their copyrights. Women and minority visual artists often created their works apart from the established gallery system, and their artworks tend to be less exhibited and well-known. The identifying information for folk art and traditional Native American art is often lost. As a result, many of these important works remain locked away in archives and inaccessible to the public. This Note proposes a solution to the orphan works problem with the goals of promoting broader cultural access and participation in mind. I evaluate four potential approaches, and conclude that the Nordic countries’ solution of extended collective licensing would best serve the goal of promoting access to cultural works of disadvantaged groups while fairly compensating rights holders who do come forward.

China's Repatriation Team Visits the Met

"That wasn't so bad after all"

So said James C.Y. Watt, the head of Asian art at the Met after a team of Chinese experts visited the institution looking for objects which had once been at the Chinese Old Summer Palace in Beijing.  China has been looking to buy or repatriate objects from the Old Summer Palace. 

The looting of the palace during the Second Opium War in 1860 holds great historical significance for many in China.  In response to the execution of twenty European and Indian prisoners, Lord Elgin (son of the the Elgin who removed the sculptures from the Parthenon) ordered the destruction of the palace.  As a 27 year-old captain in the Royal Engineers wrote:

We went out, and, after pillaging it, burned the whole place, destroying in a vandal-like manner most valuable property which [could] not be replaced for four millions. We got upward of £48 apiece prize money...I have done well. The [local] people are very civil, but I think the grandees hate us, as they must after what we did the Palace. You can scarcely imagine the beauty and magnificence of the places we burnt. It made one’s heart sore to burn them; in fact, these places were so large, and we were so pressed for time, that we could not plunder them carefully. Quantities of gold ornaments were burnt, considered as brass. It was wretchedly demoralising work for an army.

This destruction continues to shape how China views its relationship with the West.  Chinese experts have conducted a campaign to seek the return of many of the objects looted from the palace.  This includes the "guerilla bidding" last year which effectively prevented the auction of two bronzes from the palace last year. 

Andrew Jacobs account of the visit calls into question the motives of the Chinese delegation.  He throws quotations around the phrase "treasure hunting team", but the tenor in his piece echoes the pejorative of the phrase.  Many in the West still fail to engage with the fundamental issue.  Had the White House been burned and sacked in 1860, wouldn't a powerful America be doing everything it could to seek the return of these objects? 

Jacobs references the criticism of Chinese destruction of historical sites.  But nearly every nation can be accused of the same.  What about the Native American burial mound which was decimated to create fill-dirt for a Sam's Club in Alabama this year?  Does that mean America is an unsuitable steward for cultural treasures? 

1. Andrew Jacobs, China Hunts for Art Treasures in U.S. Museums, The New York Times, December 17, 2009.