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Indigenous societies have historically and continue to experience the loss of important cultural objects, which embody the historical understanding and engender the continuation of indigenous cultural heritage. Some nations, such as the United States have made significant strides in addressing this issue through comprehensive legislative reform with positive results and reactionboth in and outside the country. While others such as Canada, have failed to take substantive steps to address what is acknowledged as ongoing source of controversy in the country.

Introduction

The very notion of “‘indigenous’ embraces the notion of a distinct and separate culture and way of life, based upon long-held traditions and knowledge which are connected fundamentally, to a specific territory.”[1] European societies and later ethnically European dominated counties [i.e. Canada and the US] have for centuries fed an almost obsessive need to acquire objects from as many “exotic” cultures as possible. For hundreds of years these practices were justified on humanitarian and scientific grounds. As a result, countless cultures around the world were robbed of their most important heritage items through force, coercion, and duress. Unlike their European predecessors, the United States and Canada are home to large, notably culturally distinct indigenous populations, making this historical issue one of poignant ongoing political debate. It is only in the past few decades that the US and Canada have begun to return objects to local indigenous populations. The repatriation in some cases is an acknowledgement of past wrongdoing on the part of these respective governments. The alienation of heritage objects from these groups has in many instances injured, harmed, and destroyed the sacred and fundamental tenets of indigenous cultures. Many indigenous cultures in North America view distinctions between material objects and the intangible cultural knowledge, and a sacred understanding of the universe as a foreign construct. A tangible object may have irreplaceable intangible sacred cultural significance that can be integral to the maintenance of indigenous cultural heritage and the indigenous societies own understanding of its heritage.[2] It is through the return of these objects that many indigenous groups have sought to revive long lost traditions and bestow a historical understanding of self-identity to current and younger generations.

The loss of heritage objects and the implementation of standards for their return are a hotly contested issue in Canada. The US has for the most part has alleviated much of the controversy surrounding the repatriation of heritage objects after the passage of the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990.[3] The deaccessioning and repatriation of heritage objects presents a number of legal and ethical challenges. The Canadian government faces many issues, once ubiquitous in the US system, including: (1) Regulation of the objects currently in the possession of public museums and federal institutions; (2) Political, legal, and institutional resistance to the implementation of legal mechanisms to facilitate the return of objects to indigenous peoples; and (3) The moral issues surrounding decisions and policies not to return objects, having to account for the legal title of the objects, the conditions by which they were obtained and their present value to society as a whole.[4]

In this article I seek to understand how the implementation of comprehensive federal repatriation legislation impacts the relationship between indigenous populations and national governments. In the United States, the implementation of NAGPRA has brought about a sweeping recontextualizetion of this relationship; while in Canada the lack of uniform legislation and an uncoordinated national policy has produced uneven results, creating winners and losers, in the conflict resolution over disputed heritage objects and indigenous rights as a whole.[5] The to the casual observer it may appear surprising that the United States and Canada -due to the historical and cultural similarities of their legal systems, and indigenous populations with generally shared histories, traditions and beliefs- that these two countries would end up so far apart on this issue. My research question is: What steps does the Canadian government need to take in order to successfully implement a policy for the repatriation of cultural heritage objects and material property equally as effective and efficient as the NAGPRA statute in the US, given the current legal environment in Canada? Does the fact that both countries legal systems are based on English common law contribute to a likelihood of success? Have the limitations placed on indigenous rights by Canadian courts and an absence of sovereign legal entity status of indigenous populations in Canada, which is present in the US, limit the potential effectiveness of a NAGPRA style system in Canada?

Part I analyzes the indigenous conception of property ownership. Much of the focus is on the concept of heritage and its relationship and association with objects in a cultural context. Part II reviews the legal mechanisms for return of heritage objects in the US under NAGPRA. Section a. explores the implementation, functioning, and framework of NAGPRA.[6] Concentrating on the success of the legislation, concepts of communal property, and methods of defining heritage found in the statute. Section b. looks at the current legal environment in Canada; focusing on ad hoc legislative carve outs at the national level and reactionary case law driven policy in the courts, specifically on the R. v. Van der Peet[7] case and its lasting impact on Canadian jurisprudence. Part III examines the present Canadian system in great detail and contemplates its major shortcomings in need of reform. This Part focuses on: (a) recognition [of First Nations] in the Canadian domestic legal environment; (b) [the] lack of federal legislation; (c) archeological and museum policy; and (d) lessons that can be learned from NAGPRA, in the Canadian context. Part IV presents recommendations for the implementation of successful legislation in Canada from the author, based on writings and suggestions of First Nation legal authorities. Reviewing both incremental steps that can be taken and overarching goals and policy initiatives to ensure the comprehensiveness of any proposed legislation is broad enough in scope to maximize its potential effectiveness.

INDIGENOUS CONCEPTS OF HERITAGE AND OWNERSHIP

The definition of “cultural heritage” remains broad and malleable, for the purposes of this discussion the following definition can be relied upon:

“Heritage” is everything that belongs to the distinct identity of a people and which is theirs to share and if they wish, with other peoples. It includes all of those things regarded as the creative production of human thought and craftsmanship, such as songs, stories, scientific knowledge and artworks. It also includes inheritances from the past and from nature, such as human remains, the natural features of the landscape, and naturally-occurring species of plants and animals with which a people has long been connected.[8]

The indigenous population of North America generally views heritage not in terms of the economic benefits that can be derived from objects or knowledge;[9] rather the relationships they imply and necessarily require, between the individual, the community, the ancestors/history and the sacred. For many groups, objects may have no meaning and little monetary value outside of these relationships.[10] The intangible value in certain cultures that is assigned to heritage objects is paramount to the understanding of an objects intrinsic value. In these cases heritage objects can belong to individuals but more often are the property of the community, tribe, or clan. In many indigenous cultures throughout North America to sell an object may necessarily mean that these intrinsic relationships are brought to an end.[11] This holistic conception of the world implies an interdependent worldview of “art and science, heart and mind, creative inspiration and logical analysis.”[12] The alienation of heritage objects from the possession of many indigenous communities in adherence to traditional laws and customs necessarily requires communal consent.[13] This cultural interpretation of property rights has become a point of contention between indigenous law and custom and the current laws and regulations over property in common law legal systems.[14] While not all indigenous groups are uniform in their belief and customs there is relative continuity of major tenets in indigenous belief systems across the continent.[15]

All cultures can be defined by their cultural heritage. Connection to material culture is an integral part of psychological self-being and personal and communal understanding of self-identity. Material cultural heritage is a primary avenue for not just individual creative expression, but also of group and community spiritual, cultural and political life.[16] Individuals may not own cultural heritage but instead by the community or group as a whole. Objects in various indigenous cultures are held in trust, by individuals for the collective benefit of the entire society regardless of the individual dominion and control exercised by the individual trustee.[17] For instance, the National Park Service, not for the benefit of the agency but for the benefit of all Americans, maintains Mount Rushmore. [18]Therefore, property rights and physical possession of an object or site may not always convey the same rights that possession or ownership might grant to individuals over their personal property in a common law system.[19] In some societies like the Tlingit Native Americans of southern Alaska, culturally important objects while belonging to particular individuals[20] held in trust for the benefit of the clan or village. Each individual tribe, clan, or community embodies individualized rules and beliefs that shape and sustain the culture.[21] The need to adhere to these beliefs is one of the many factors that makes illegitimate alienation of heritage and the return of heritage objects, a primary area of concern for these respective cultures.

IMPLEMENTING NATIONAL POLICIES: THE RETURN OF HERITAGE AND THE LEGAL MECHANISMS THAT FACILITATE THAT RETURN United States: Implementation, Functioning, and Framework of NAGPRA

The United States’ historical treatment of the indigenous Native Americans, Alaskans and Hawaiians is a checkered past of horrific human rights abuses, inherited from the British colonial policies but expanded and maintained by the US government up until around the middle of the twentieth century. The latter part of the twentieth century and the twenty-first century have seen the implementation of increasingly less draconian legislation and policies affecting the native population, leading to the current political and legislative environment.

By the 1990s political momentum and extensive lobbying by Native groups[22] resulted in the most important legislation regarding the property rights of the indigenous people of the US, the Native American Graves Protection and Repatriation Act (NAGPRA).[23] Important in this act is the recognition that Native American, Alaskan and Hawaiian groups are living legal entities possessing legal sovereignty.[24] NAGPRA recognizes that indigenous groups are not themselves museum objects of dead cultures, or even “isolated remnants of quaint lost tribes;” but members of ongoing governmental, social, economic, religious and political units. [25] the legislation relies on this recognized distinctiveness to inform the relevant dispute resolution process and set culturally appropriate limits to its provisions.

NAGPRA’s deference to Native American definitions and legal concepts[26] makes clear the legislative intent of the statute[27] to rely on the legal lexicon specific to each group required under the statute. Specifically, the statute defines “sacred objects,” “cultural patrimony,” and “rights of possession.”[28] All of these are defined in broad terms and stipulate the particular nuanced differences in traditional indigenous laws and customs of individual’s tribes or groups to be controlling on the adjudicatory body ruling on disputes involving heritage objects. In some ways this system has always been in place as seen in the reasoning in the Whale House[29] case.

In the Whale House case ceremonial objects were removed from a communal building in federally tribally administered village.[30] The objects were sold by the individuals that removed them from the village contrary to traditional tribal custom codified in village ordnances.[31] The case originally made its way through the federal court system; eventually the 9th Circuit remanded the case[32] to the village councils dispute resolution process to be tried under traditional law. Here, the 9th Circuit recognized the village’s power, by virtue of its federal recognition, to apply its ordinances to Indians as well as non-Indians. The Department of the Interior and Bureau of Indian Affairs along with the US courts prior to NAGPRA’s implementation promoted the application of traditional standards in US courts for legal disputes arising from territory or property belonging to federally recognized tribes.[33] It is important that individual native groups are able to apply culturally appropriate legal definitions and of the specific group’s customs and beliefs to federally sanctioned dispute resolution processes’. The ability of Native Americans to define culturally appropriate legal definitions and concepts has contributed significantly to NAGPRA’s success. During the drafting process in Congress[34] the input from native groups allowed lawmakers to account for the operation of traditional law and custom within the legal framework of NAGPRA. Additionally, NAGPRA relies on each individual, and distinct cultural group to provide the legal framework for dispute resolution. Most importantly, “NAGPRA has placed the primary task of the factual determination” with Native Americans themselves.[35]

NAGPRA recognizes, consistent with traditional tenetsunderlying American jurisprudence, [36] that because “the Native American is, in fact, the only source of accurate and meaningful interpretation of the traditional aspects of Native American culture.”[37] Native American definitions and legal concepts are essential to the law, functioning as an inclusive document to be a benefit of Native Americans. The consensus building nature of NAGPRA, and the compromises made by all interested parties, suggests a willingness to recognize and address “the cultural differences between Native and non-Native and within the Native community itself”[38] The fact that the US government was willing to accommodate Native groups so extensively can be attributed to effective lobbying on the part of indigenous groups themselves and, in the author’s opinion, tacit recognition of the historical mistreatment and disenfranchisement of the Native groups by the US government.

Native groups ability to apply traditional laws and customary practice to dispute resolution under NAGPRA codified long applied legal standards.[39] NAGPRA has allowed Native American to define what a sacred object is and what they consider to be cultural patrimony, what “property may be transferred by individuals, and what property can be alienated or placed in trust only by the entire tribal group.”[40] Canadian courts have also applied this method of group specific application of definitions, laws, and customs.[41] However, as will be discussed later, this application has been much more limited in scope.

NAGPRA is not self-actuating but mandates action by all of the interested parties in order to achieve its intended results.[42] This puts the onus of locating; retrieving, and maintaining conservation of objects on the indigenous community itself. The mandate and actions required for federally funded museums and government agencies is discussed in the subsequent paragraph. The Native groups in the United States are treated as sovereign participants with an ongoing government-to-government relationship. [43]

NAGPRA mandates federally funded museums and requires federal agencies to return specifically designated categories of Native American cultural material.[44] Other objects, that fall outside of these categories are not required to be returned, these objects are discussed at length later in this section. NAGPRA’s intent is for heritage objects to be returned to lineal decedents of individuals when it is clear who they are and/or to culturally affiliated tribes and organizations.[45]

Cultural items include human remains, funerary objects, sacred objects, and objects of cultural patrimony.[46]

The most daunting requirement of NAGPRA is the requirement that all federally funded museums and federal agencies compile an item-by-item inventory of human remains and associated funerary objects owned or possessed by them.[47] Inventory lists are required to include where the objects came from and if known, their cultural affiliation, and any information about how and when each item was acquired by the museum or agency.[48] These inventory lists created large financial burdens on smaller and less well funded museums when the regulation was first promulgated.[49]

To mitigate institutional resistance and delay, under the legislation federal grants are given to some institutions in order to assist in the process of repatriation.[50] The legislative mechanisms in the statute employ a Carrot and Stick Approach to enforcement. In addition to grants to encourage compliance with the law, under NAGPRA the Secretary of the Interior has the power to assess civil penalties on museums that fail to comply with the regulations.[51] NAGPRA also lays out procedures for the inadvertent discovery or future excavation or cultural items on federal or tribal lands. These provisions do not apply to the discovery or excavations of items on private of state land but they may apply if the objects come under the control of an institution that receives federal funds.[52] Archeological discovery property rights in the Canadian context are discussed in Part III subsection c.

In the case of unassociated funerary objects, sacred objects and cultural patrimony, NAGPRA does not require their return.[53] However, museums and agencies are required to provide a summary of these items and not an object-by-object inventory.[54] The summaries provide general information about the kinds of objects held by the museum or agency, where they are located, their cultural affiliation and how and when obtained. Museums and agencies have an on-going obligation to consult with Native American governmental and traditional leaders about the objects included in these summaries but do not necessarily have an obligation to repatriate these objects. This creates an ongoing relationship between native groups and institutions.

The return and repatriation of objects museums are not under an obligation to return necessitates a certain level of discretion on the part of museums regarding repatriation. This discretion inadvertently implicated fiduciary duties and negligence liabilities of museum trustees and administrators, discussed at length in Part III.

NAGPRA provides board legal mechanisms for descendants of deceased Indian individuals, Native American, Alaskan tribes and Native Hawaiian organizations to assert a claim for the repatriation of heritage objects from museums or federal agencies.[55] The statute gives a broad definition of the term “descendent” and allows for definitions specific to particular tribes to apply where legally appropriate. NAGPRA relies on the US government policy of legal federal recognition of tribes to determine qualifications of individuals or groups to assert these rights.[56] Under this system tribes that are federally recognized by the Bureau of Indian Affairs receive a bundle of rights under Title 25 of the Code of Federal Regulations.[57] These rights include: Land and property rights, the ability to implement and govern that and in accordance with traditional law and custom, and the right to assert a claim under NAGPRA.[58]

The implementation of NAGPRA has largely been seen as a success both in and outside of the US. Throughout the description and analysis of the Canadian legal environment, comparisons to the US system will make clear how successful this legislation has been and the lessons that can be learned from its implementation for any future legislation in Canada.

Canada: Ad Hoc Legislation and Case Law Led Policy

Reparation is something like an act of “claiming metaphorical territory via control of an object.”[59]

Indigenous material heritage in the collections of Canadian museums are vast. In addition to the efforts of ethnographers and anthropologists to collect materials from various cultures, the Canadian government participated in the systematic removal of hoards of objects from indigenous peoples between 1880 and 1930.[60] During this time “potlucks” —traditional ceremonies in the pacific northwest regions of Canada and America, where huge numbers of objects were given from one group to another to commemorate special occasions (i.e. treaties,[61] weddings or funerals)— were outlawed and all of the associated materials confiscated by authorities.[62] The potlucks were banned partially at the request of missionaries, who saw the custom as useless and a waste of resources[63] and on the imperative of the government who saw the ceremonies as a major impediment to assimilation policies pursed at that time.[64] Even materials and objects that were not exchanged during the ceremonies were confiscated under duress and through coercion by local magistrates, who had the power to award jail sentences without a trial for participating in a potluck ceremony.[65]

The legal mechanisms for the return of objects to Canada’s indigenous population, who prefer the nomenclature “First Nation(s)”, are primarily embodied in Canadian case law, provincial legislation and individual institutional policy.[66] The bulk of disputes, belong to two categories of objects: (1) those items obtained through unethical means, either coercion or duress, or by legal means at the time, that would be considered unethical today; and (2) items sold legally under provincial law but illegally under the specific community law followed by the First Nation.[67]

Under the Canadian system objects obtained illegally for the most part are returned when requested and the requesting First Nation has the resources to properly care for and maintain the object in accordance with modern museum conservation standards.[68] Unlike the US system, where all requested objects within the statutorily prescribed categories must be returned under threat of civil penalties, Canadian museums have broad discretionary power.[69] The rights and constraints in statutes and case law regarding the return of objects are poorly defined under Canadian law, as will be discussed more extensively below. In the US, scientist and museums return items regardless of most of the concerns in opposition.[70] Contrary to the US, Canadian institutions are able to refuse repatriation on preservation concerns to protect objects that have acquired secondary meaning or significance by their inclusion and display in a museum,[71] or due to the requesting communities inability to properly care the object.

i. First Nation Constitutional Protections

In Canada, museums are under no obligation to return objects, which are not integral to ceremonial practice, and of central significance to that practice, custom, or tradition. However, Section 35(1) of the Canadian constitution recognizes limited First Nation rights over certain forms of material culture.[72] Since First Nation rights are raised to the level of constitutional protection, the ability of the provincial governments to terminate or regulate these rights is limited. However, these rights are not available to individuals and are only available to the groups as a whole. This puts groups in stronger bargaining positions but excludes individuals or small groups of individuals from asserting claims based on these rights. According to the Supreme Court of Canada, First Nation title is derived from the occupation of the land at the time the Crown asserted sovereignty over the land.[73] This means that First Nations have significantly stronger claims to protect certain items that are, or were, affixed to the land like totem poles rather than moveable heritage objects.[74]

Canadian judicial decisions suggest[75] that First Nations enjoy some generic rights also, such as the right to ancestral territory,[76] the right to cultural integrity, and the right to customary law.[77] These generic rights can be understood as part of the basis for the right at the very least to control the display of objects in museums and in limited instance to seek their return. [78]

ii. First Nation Rights As Defined By Canadian Case Law: R. v. Van der Peet

First Nation rights in Canada, in comparison with the US, are poorly defined. In the United States, regulatory norms are codified by statute; the Canadian system instead relies on a bundle of limited rights and privileges found in various federal and provincial statutes and regulations, largely based on case law from the federal and provincial courts.[79] R. v. Van der Peet is the most influential of these decisions, outlining definitions of rights and privileges. The case involved a dispute over the right of a First Nation individual to commercially sell fish using a specially issued license meant to provide First Nation people with the right to live off of their ancestral land according to their tradition and custom but not to use it to engage in modern day commercial enterprise.[80] The court sets out a test to determine, whether the rights and privileges of First Nations, to their traditional practices, in this instance fishing, is outweighed by the governments interest in regulating none traditional practices, and what practices, customs or traditions are privileged under this analysis.

The R. v. Van der Peet court reaffirmed that Section 35(1) of the Constitution Act 1982 recognizes a fiduciary relationship between the Crown[81] and First Nations.[82] Stating treaties signed in the past with these groups must not only be honored but also given “generous and liberal” [83] interpretation.[84] This means when there is any doubt or ambiguity regarding the rights to tradition, custom or practice that fall within Section 35(1); in being delineated in a treaty the doubt must always be resolved in favor of the First Nation.[85] The policy considerations that inform the construction of the framework of legal mechanisms available to Canadian First Nations starts to become clear when considering the court’s analysis of Section 35(1). The court says the Canadian government has general legal title to everything within its control: land, the right to regulate practices and actions for people, and objects held by government institutions,[86] however, it recognizes that First Nations have limited beneficial title to assert and control these rights. [87]

The court in R. v. Van der Peet was tasked with determining the scope and definition of Section 35(1) of the Constitution Act 1982.[88] “Section 35(1) provides the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, customs and traditions, is acknowledged and reconciled with the sovereignty of the Crown.”[89] Accordingly, substantive rights of First Nation’s, which fall within the provision “must be defined in light of this purpose.”[90] The court put forth the “Integral to Distinctive Culture”[91] test, meant to provide the courts with a mechanism for determining whether a claimant is able to access the special rights granted to First Nations.[92] Throughout Canadian law these special provisions for First Nations that can only be accessed if it is determined by a court the tradition, practice, or custom, of that specific First Nation meets the Integral to Distinctive Culture Test:

“To be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. A number of factors must be considered in applying the “integral to a distinctive culture” test. The court must take into account the perspective of the aboriginal peoples, but that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure.”[93]

These rights originate from wide array of sources granting First Nation groups the rights to almost anything, from fishing to logging with special licenses that costs significantly less than for other Canadians or the rights to assert title to heritage objects found in museums. The caveat being in order to access these rights your First Nation must meet the requirements of the test laid out above.

The Integral to Distinctive Culture Test has proven controversial in Canada among First Nations.[94] Almost any tradition, practice or custom can be determined to be integral to the distinctive culture of a First Nation group. The burden of proof, however, is relatively high. The court places a number of burdens on First Nations, stating lower courts should consider such factors as: (1) the nature of action which the applicant is claiming pursuant to First Nation rights; (2) the nature of the governmental regulation; (3) statute or action being impugned; and (4) the practice, custom or tradition relied upon to establish the right.[95]

An additional requirement of the Integral to Distinctive Culture Test is that the distinctive right must be “an exercise in modern form of a pre-contact practice, custom, or tradition.”[96] This pre-contact restriction limits distinctiveness to practices, customs, or traditions that pre date European contact. This restriction excludes any practice, custom or tradition that occurred after or in response to European contact. The court here is imposing the value system of the dominant cultural groups in Canadian society on First Nation cultural rights. This is an acknowledgement by the Canadian court that at the present moment only the pre-contact aspects of First Nation cultures are valued enough by society as a whole to warrant special protections and rights. The court repeatedly references[97] the First Nation’s pre-contact status as sovereign nations requiring respect and certain limited constitutionally protected rights.[98] This distinction, however, is completely arbitrary in the opinion of many First Nation peoples and in the opinion of the author. The court does soften some for the restrictiveness of the pre-contact requirement by stating that it wants the judiciary to avoid the “frozen rights” approach.[99] The fact that the there may have been a gap in the continual exercise of the practice does not automatically preclude the First Nation from asserting these rights.[100] The primary requirement being the practice, custom, ortradition originated prior to European contact.

The pre-contact requirement has caused a considerable amount of controversy, not least of which has been over those First Nation groups formed after contact with European settlers.[101] These groups’ entire culture, practices, and traditions remain largely unprotected by the Integral to Distinctive Culture Test.[102] The reasoning behind this limitation is to reconcile the original sovereign cultures that resided in pre-contact Canada and the current sovereignty of the Crown.[103] Litigation over First Nation rights, according to the court requires special evidentiary standards in order to reach a fair determination on the issue.[104] Evidentiary standards are lowered to allow for oral history, and when needed, anthropological theory and analysis to determine the pre- or post-contact status of practices, customs or traditions.[105] In other instances in Canadian jurisprudence evidence of this nature would otherwise be inadmissible.[106]

So how do First Nation peoples go about asserting their rights? As noted above, “in order to be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question.”[107] The phrase “of central significance” limits the rights that can be asserted. The facts of R. v. Van der Peet provide an example of this limitation. Dorothy Van der Peet, a member of the Stó:lō First Nation in British Columbia, was charged by the Department of Fisheries with selling salmon that had been caught using a food-fishing license. Food-fishing licenses’ only permitted First Nation people to catch fish solely for the purposes of sustenance and ceremonial use,[108] and prohibited the sale of fish caught under this license to non-First Nation peoples. Van der Peet challenged the charges, arguing that as an Aboriginal person, her right to sell fish was protected under Section 35(1) of the Constitution Act. It is technically possible to catch fish using a First Nation license and sell them commercially under the, however, only if it can be demonstrated that this practice was integral to a distinctive practice, custom or tradition of that First Nation and that it was of central significance. The court here, did not find that was the case in this instance.[109]

The central significance calculation is applied in the case of objects held by institutions. When a First Nation wants to repatriate a heritage object for a practice, custom, or tradition, i.e. a ceremonial woodcarving used in potlucks that is unique to that First Nation, they probably will be successful in claiming that object. In this instance, repatriation would be possible even if the practice had only been recently revived after it ceased to be practiced immediately following European contact and the claim of title is based on evidence of only oral tradition and history.[110] The discretion of each individual court to determine what meets the vague central significance slandered in Van der Peet under the Integral to Distinctive Culture Test[111] is a cause for concern.

Everything under the Van der Peet analysis is highly group specific. For instance, one group may have the right to assert claims over woven baskets due to their importance and veneration in that group’s pre-contact society, while no other First Nation can claim that right. This has led to the uneven repatriation of heritage objects within the Canadian system resulting in winners and losers on among First Nations.[112] This seemly acutely fact specific analysis is relaxed slightly by the court stating “the integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it done not require that the practice, custom or tradition be distinct.”[113]

The court also proscribes limits on what subgroups within First Nations can assert rights. A band, clan, or family group within a First Nation that had been traditionally relegated to a group specific division of labor might be able to assert a claim to a particular object.[114] If the subgroups ancestors within the First Nation were tasked with a ritualized division of labor as their primary role within the society, they may be able to assert rights to objects that other members of their larger groups would bot have available to them.[115] However, the court cites anthropological evidence to support the notion that in most instances groups within First Nations may not be able to assert such rights, since the specialized division of labor was primarily based on gender and age.[116] The smaller the group and the more gender and age specific the division of labor, the less likely it will that group can take advantage of the beneficiary rights found throughout Canadian law over material property, real property and commercial activities. This is because that group’s participation in the practice, custom, or tradition is probably not distinctive to that group, rather it is indicative of indigenous societies in North America, in general.

INDIGENOUS VOICES TODAY: HOW TO IMPROVE THE SYSTEM IN CANADA AND LESSONS FROM NAGPRA – NOTES AND COMMENTS FROM THE AUTHOR Recognition in the Canadian Domestic Legal Environment

Due to the lack of comprehensive federal legislation, First Nations and individuals must rely on case law over legislation to assert claims of title over heritage objects in the possession of Canadian institutions.[117] However, no case law has thus far been determinative on the issue, no decision speaks directly to the issue of repatriation of objects.[118] The trend in Canadian courts points towards gains standardizing First Nation of rights in material culture occurring on the periphery, [119] rather than a paradigm shifting judicial decisions that deal directly with ownership or possession of material heritage objects. Instead, First Nation rights over material heritage objects have slowly been extended or enhanced piecemeal through case law on unrelated issues like the R. v. Van der Peet case. For indigenous groups in the US all of the relevant legislative material is compiled, organized and easily accessible on the website of the Bureau of Indian Affairs’ website,[120] no case law reading required.

Lack of Federal Legislation

The lack of federal legislation in Canada is by far the largest and most pressing concern for First Nations who seek the return of their heritage objects. While many objects fall under the federal case law described above, a much larger number are governed by statutory regulations [both federal and provincial] and provincial case law governing internal museum policy.

Archaeological materials in the ongoing discovery process throughout the country are “governed by the law of finding.”[121] This legal regulation grants superior rights to the owners of the land rather than those who find buried materials. The superior rights of the original owners subsume the superior title of finders of materials.[122] However, limitations are placed on these objects, either stemming from statutory time limits on claims or abandonment. [123]

Adding to the ambiguity caused by the lack of federal legislation is the implementation of provincial heritage conservation legislation.[124] Canadian Provincial laws governing the rights and practices of museums can prevent the return of many objects. Most of these statutes are designed to protect cultural heritage through commonplace regulatory initiatives.[125] While these laws do not supersede guaranteed federal constitutional rights, proper claim of title must be established in the federal court system in order to force museums to relinquish the possession of objects that are retained under provincial law.[126] The justification for these laws is that Canada, as a whole will lose the opportunity to learn from the past and educate about traditional practices in the future. [127] Museums in Canada are tasked with preserving significant and historically important objects for the benefit of all Canadians.[128] However, this concern appears to be unfounded. The implementation of the NAGPRA and is repatriation mechanisms in the US have not lead to a significant depletion of important and seminal heritage objects in US museums.[129] Many indigenous groups around the world recognize the importance of museums in properly preserving their important material cultural heritage, as well as the museums’ role in educating the public about their culture. At the present however, the wholesale return of objects in Canada looks to be unattainable in the immediate future.

Archaeological and Museum Policy

Museum and archive law, fiduciary obligations, and common law negligence in Canada place legal restrictions on the ability of museums to repatriate objects.[130] Everything from provincial statutes, common law to an institution’s incorporating documents creates a wide variance of rules governing individual institutions return policy. Federal legislation governing federally funded museums (this includes most major Canadian museums), emphasizes the preservation, education, and public interest in the mandates imposed on museums.[131] The Canadian Museum Association Ethical Guidelines:

“Museums should be committed to the return of human remains, directly associated funerary objects and culturally sensitive objects, when requested by communities or groups with a demonstrable claim of historical relation- ship to them, and be prepared to facilitate the return of material which may have been acquired under circumstances that invalidate the museum’s claim to title.”[132]

Preeminent Canadian scholar on the rights and policies for repatriation of First Nation material culture, Catherine Bell, notes on the issue of the public mandate: “Although, many Canadian museums interpret the public mandate to include repatriation of significant cultural items to [First Nations], such mandates may also affect the scope and/or quality of items considered for repatriation, particularly outside of the treaty and land claims process.”[133]

Unlike in the US where museums are primarily 501c(3) organizations; Canadian museums are corporations with the power and duties to acquire, preserve, and dispose of assets. However, the requirements regarding the disposal of heritage or cultural materials objects are primarily unregulated by the federal government. These policies are instead regulated in the generally articulated goals and requirements of the Canadian Museum Association Ethical Guidelines. These guidelines regarding the legal responsibilities of museums:

“Museums have two fundamental public trust responsibilities: stewardship and public service. The trust of stewardship requires museums to acquire, document and preserve collections in accordance with institutional policies, to be accountable for them, and to pass them on to future generations of the public in good condition.”[134]

The absence of comprehensive federal legislation in Canada on the issue of repatriation is a concern for both the First Nations and the museum executives. It is clear that some kind of fiduciary relationship exists between museum executives and the public/Crown because of the mandate.[135] However, what that fiduciary duty exactly entails is open to the interpretation of executives and the discretion of courts.

Under the current Canadian mandate, a negligence standard can be applied to museums involved in deaccessioning efforts. Since the current mandate is broad and open to interpretation, issues of negligence liability can arise when items are removed from the museum, that do not meet the high standards set out in Van der Peet. Especially when an item of significant economic value is repatriated, that is not needed for ceremonial purposes or when the object was acquired legally under ethical circumstances. The fiduciary duties of museum executives to “preserve museum collection”[136] and “pass them on to future generations”[137] has a chilling effect on the repatriation efforts in many instances. The fiduciary duty puts the discretionary authority whether or not to move forward repatriating an object in the hands of museum executives.

While this problem has not presented itself in any significant way, in the United States after the implementation of NAGPRA, the fear that it could happen in Canada is present and will require and ongoing national public dialogue on the issue before changes to the policy will occur. Since Canadian museums are corporations, not charitable institutions as in the US, deaccessioning may be acceptable if the courts are willing to consider the repatriation of objects as charitable donations which are meant to ensure public good will and long-term profitability. However, this avenue of repatriation is limited.

When conflicts arise over the return of an object the discretionary limits of executives, unfortunately, it falls to the discretionary authority of the courts to resolve. This haphazard framework, allows the discretionary powers of the courts to determine the acceptable limits of discretionary decision-making by museums, which contributes to the wholesale arbitrariness that plagues the legal mechanisms for repatriation in Canadian jurisprudence.

In the authors opinion, the scope of institutional discretion given to museum executives and lack of federal regulation on such of internal museum policies and by-laws determinative on the right to repatriation, is not only objectionable to First Nations, it is a policy failure by the government of Canada. The potential arbitrariness of Institutional Policy Repatriation and determinations made by museum executives is reprehensible in light of historical alienation of cultural heritage through duress and coercion by the Canadian government.

NAGPRA: What Can Be Learned

Any Canadian legislation would be served well to encompass the relative success of NAGPRA in the United States. The US courts have recognized the importance of traditional property laws and customs practiced culturally diverse groups since before the legislation’s inception. NAGPRA codified the ability of Native groups to demonstrate that the nature of traditional property rights of the group at the time an object was taken were incompatible with the manner in which the object was alienated[138] The law also recognizes that the dispensation of the object may not have been valid under tribal law. The NAGPRA rule applies the common law nemo dat rule[139] which prevents the conference of greater interest in property to another than an individual holds in that property. This rule applied through NAGPRA prevents continued invalid alienation of property, extending a common law right to Native groups in a culturally appropriate context, which already protects all other Americans. NAGPRA is a clear bright line rule for almost every object or human remains that falls into its proscribed categories, something Canada will have to work hard to achieve.

CONCLUSION: WHAT CAN BE DONE: HOW CANADA CAN SUCCESSFULLY IMPLEMENT COMPREHENSIVE REPATRIATION LEGISLATION – SUGGESTIONS FROM THE AUTHOR

Before tackling the most complicated issue regarding repatriation, comprehensive federal legislative reform, much more can be done to ensure that the heritage objects currently in Canadian museums are displayed and cared for in a respectful manner.[140] The establishment of a federal task force to act as a liaison between museums and First Nations should be an important initial step to improving relations with First Nations.[141] Canadian Museums should continue and expand existing engagement policy, preferably in coordinated and thoughtful steps.[142] In order for programs such as these, to be successful in bridging the gap between First Nations and their cultural heritage, Canadian museums will need to: (1) Improve access to museum collections for First Nations (allowing First Nation representatives both physical and virtual access to collections); (2) Increase involvement of First Nation peoples in the display, interpretation, and maintenance of their heritage; and (3) Repatriate all human remains and associated funerary artifacts currently in museum collections. These general steps, particularly the third one, would represent a most productive step forward in the repatriation process of First Nation heritage and help to address many of the serious concerns about cultural insensitivity.

As debate over the need for comprehensive federal legislation continues, there are several intermediate and auxiliary steps that can be taken in the interim. These include, but are not limited to, the following: (1) Creating museum quality replicas of some objects and returning the originals to First Nations; (2) Transfer title to First Nations of items which under current legal standards were acquired illegally (where the First Nation and museums agree to continued display of the object); (3) Transfer title to heritage objects, which were not illegally obtained, that continue to have central historical, ceremonial, traditional or cultural significance to a First Nation; (4) loan sacred and ceremonial objects to First Nations for use in ceremonies and festivals; and (5) assist repatriation efforts of objects located abroad.[143]

In the continued absence of legislation, both First Nations and cultural institutions should continue to increase dialogue on methods of display, the maintenance and the eventual repatriation of heritage objects, and finally when faced with disagreement, agree to arbitration over litigation. Even without the comprehensive legislation or institutional repatriation polices, the establishment of a federal department on the issue of repatriation would ensure a way to alleviate many of the present issues. A centralized agency or commission, similar to the one set up under NAGPRA,[144] could help First Nations navigate the complex legal environment and provide information on the rights and regulations surrounding repatriation of cultural objects.[145]

A major concern of many institutions in Canada is that Legislatively Mandated Repatriation, as opposed to Institutional Policy Repatriation, will “create adversarial relationships and inflexible legal standards of proof”[146] that operate to the detriment of First Nations and museums. The experience in the United States with NAGPRA, however, has demonstrated that courts will rarely be required to intervene if the legislation is competent in its construction and framework for achieving the desired results of the legislation.

NAGPRA is far from perfect legislation and Canada can also learn from its shortcomings when constructing the framework for its own comprehensive repatriation legislation. In matters of cultural heritage, legislatively defining specific categories of property inherently suffers from under inclusiveness.[147] Issues surrounding communal property are also inherent in the NAGPRA legislation to some degree. The United States primarily grants rights to assert ownership over cultural heritage to federally recognized tribes as a whole. However, this excludes the various dimensions that exist in the diverse historical customs of indigenous property law throughout North America. The ability to resolve issues over alienation should be made available to every group, subset of that group, and individuals that traditionally would have legal title and control over the objects according to the traditions, customs, and practices of that group. This is an issue that has arisen in some cases in the United States, the spirit of NAGPRA has dutifully been followed, “provisions are being interpreted with the purpose of NAGPRA in mind and that ‘Native American interpretation’ of ambiguous terms has prevailed.”[148]

Canada should also take note of the economic costs of the reporting and inventory requirements that are imposed on museums under NAGPRA. Proper funding for any initiative of this nature in Canadian legislation will be important to ensure the smooth implementation.[149] The inclusion of funding will reduce institutional resistance to comprehensive reform. Additionally, in the United States, NAGPRA was the source of a number of issues for museums in which Native American specific policies and institutional arrangements[150] to deal with repatriation were absent. NAGPRA required many institutions to create new operational policies to collect, analyze, and distribute data about current and newly acquired objects in their collections to affected communities.[151] While not directly affecting the legal mechanisms for repatriation of heritage property these steps will create a more hospitable legal and political environment in which substantive legislation can be enacted.

Under NAGPRA only federally recognized tribes can assert ownership rights over cultural heritage. This has been to the exclusion of non-recognized tribes and peoples and is the source of contention for many of American Indian heritage who do not belong to a recognized tribe.[152] Regardless of those excluded from the system Canadian law does not recognize First Nations in the same way that Indian tribes are recognized by the United States, as semi-sovereign legal entities. The lack of an official entity status for First Nations may lead to various issues under comprehensive repatriation legislation. Museums may be concerned with giving objects to unrecognized legal entities, especially if the property is communal or require expertise specialized conservation methods. This scenario has the potential to create legal ambiguity regarding liability, control and right of title and should be addressed.

In order to facilitate negotiation through repatriation legislation, the Canadian federal government will need to enact broad legislation with a wide scope. This will require: (1) The creation of a “Interculturally Legitimate Dispute Resolution Process,”[153] this would be in addition to other mechanisms and the codification of evidentiary standards already present in Canadian case law regarding First Nation heritage; (2) Clear and comprehensive legal standards for museums for the indexing, return, and maintenance of heritage objects; (3) Adequate funding for museums to implement these new standards; and (4) Provisions that seek to strengthen existing successful partnerships between the government, museums and First Nations.[154]

There are many other issues that will need to be resolved before successful implementation of any proposed legislation can be effective. NAGPRA’s success thus far casts a shadow on Canada’s ad hoc system and polices concerning the repatriation of heritage objects. This shadow, however, can also be a roadmap to a successful resolution of a divisive issue.

This article and the research involved is considered by its author to be as of yet unfinished and in continued need of development and analysis. If you have comments or criticisms of the analysis and commentary put forth in this article please contact the author at greg@sensiblereason.com. Thank you for your interest.

[1] See generally Special Rapporteur on the of the Sub-Commission on Prevention of Discrimination and Protection of Minorities Study on the protection of the cultural and intellectual property of indigenous peoples by Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations.1, 1-56 U.N. Doc. E/CN.4/Sub.2/1993/28 (July 28, 1993). (by Erica-Irene Daes). [hereinafter Study on the protection of the cultural and intellectual property of indigenous peoples] (on the rights of indigenous people before such rights were incorporated into international conventions).

[2] See Peter K. Yu, Cultural relics, intellectual property, and intangible heritage. 81 Temp. L. Rev. 433. 477-478 (2008). (discussing indigenous emphasis on the value of intangible heritage).

[3] Native American Graves Protection and Repatriation Act, 25 USCA §§ 3001 note (1990) [hereinafter NAGPRA].

[4] This source is of unparalleled value to my analysis. It is one of the most comprehensive, and recent coordinated collections of articles and thesis’s ever-completed regarding indigenous issues in Canada. Furthermore, all of the primary research partners, and authors are members of Frist Nations or trusteed advocates of the indigenous community in the country. See generally Catherine Bell and Robert K. Paterson, 2 Restructuring the Relationship: Repatriation and Trade 1-97 (2009). [hereinafter Bell et al, Restructuring] This third issue is particularly important in the context of Canada, where even when it can be proven that a tribe or group has legal title to a particular object the courts and museums take into account the cultural importance of the object to contemporary Canadian society as a factor in the calculation. Id. at 21. This policy in a way recognizes the fact that culture is fluid and the heritage of two distinct cultures has now become intertwined and represents a new culture that traces its history to a number of origins. Id. at 22. See also Thomaira Babbitt, “NAGPRA as a Paradigm: The Historical Context and Meaning of Native American Graves Protection and Repatriation Act in 2011”, in Silent History: Reclaiming Palestinian Cultural Patrimony and History and Using NAGPRA as a Paradigm 61-70 (2011). [hereinafter Babbitt, NAGPRA as a Paradigm] This is in contrast to the approach in the US which has more or less experienced the wholesale return of objects regardless of their current importance to modern American society and giving limited consideration to the ability of the tribe to care for and maintenance of the object in adherence to modern conservation standards [another factor considered important in the Canadian system. These issues are discussed in greater detail below in Part III]. Babbitt, supra, at 64.

[5]Bell et al, Restructuring, supra note 4, at 23-25.

[6] NAGPRA, supra note 3, at 166-182.

[7] R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can.).

[8] Study on the protection of the cultural and intellectual property of indigenous peoples, supra, note 1, at 8.

[9] See generally Athanasios Yupsanis, Cultural Property Aspects In International Law: The Case Of The (Still) Inadequate Safeguarding Of Indigenous Peoples’ (Tangible) Cultural Heritage. NETHERLANDS INTERNATIONAL LAW REVIEW, 58, 335-361. (2011). (Neth.). [hereinafter Inadequate Safeguarding Of Heritage] (discussing indigenous concepts of heritage as related to economic considerations). See, e.g., Yu, supra note 2, at 1447. (discussing indigenous heritage in terms of intellectual property value).

[10] Inadequate Safeguarding Of Heritage, supra note 9, at 341 (discussing Western/European concepts of marketability and commercialization imposed on the indigenous context).

[11] See id. at 342.

[12] Id. at 336, 337. (introducing basic principles of indigenous worldviews).

[13] The US has granted many federally recognized tribe’s sovereignty over tracks of land, allowing them to govern the population there under the traditional laws and customs of the group. Indian Reorganization Act, 25 U.S.C. §§ 461-494 (2011). This is in contrast to Canada where the ability of First Nations to practice traditional law and customs, even on ancestral land that they currently occupy, is still governed and regulated by the provincial and federal case law. See Bell et al, Restructuring, supra note 4, at 25-31.

[14] In Canada, generally the property rights of individuals when asserting title over heritage objects is much more limited unless clear legal title can be proven within the applicable legal parameters available to all Canadians. Only limited privileges are granted to individual members of First Nations in Canada when asserting title over disputed objects. See Catherine Bell, “Aboriginal Claims to Cultural Property in Canada: A Comparative Analysis

of the Repatriation Debate” (1992) 17:2 Am. Indian L. Rev. 457 (Can.); Catherine Bell, “Limitations, Legislation and Domestic Repatriation” (1995 Special Issue) U.B.C. L. Rev. 149 (Can.); Catherine Bell and Robert K. Paterson, “Aboriginal Rights to Repatriation of Cultural Property” in Ardith Walkem and Halie Bruce, eds., Box of Treasures or Empty Box? Twenty Years of Section 35 (Penticton, BC: Theytus Books, 2003) at 103. (Can.). See also Patrick Walker and Clarine Ostrove, “The Aboriginal Right to Cultural Property” (1995) Special Issue U.B.C. L. Rev. 13. (Can.). Cf. In the US, NAGPRA only permits federally recognized tribes to assert the rights provided by the act. The US does not make available legal mechanisms for asserting title over and object or allow any leeway in the standards of evidence allowed for unrecognized tribes. See generally NAGPRA, supra note 3, 166-182. The US, however, long before the implementation of NAGPRA recognized the rights of American Indians, Native Alaskans and Hawaiian Organizations to assert communal property rights, trusteeship and applicable traditional laws and customs of that particular group in dispute resolution regarding heritage objects. See generally Chilkat Indian Village Tribal Court Chilkat Indian Village, IRA v. Johnson, et al. No. 90-01 (Chilkat Tr. Ct., Nov. 3, 1993). (discuses the procedural history of the case where the 9th Circuit in 1989 prior to NAGPRA, remanded the case to the village court recognizing it as the proper venue for the action and then goes on to the merits of the action).

[15] Government of Canada Panel on Research Ethics, Research Involving The First Nations, Inuit And Métis Peoples Of Canada. (May 1, 2014). http://www.pre.ethics.gc.ca/eng/policy-politique/initiatives/tcps2-eptc2/chapter9-chapitre9/#toc09-intro

[16] See Bell et al, Restructuring, supra note 4, at 19. Accord Rennard J. Strickland, Implementing the National Policy of Understanding, Preserving, and Safeguarding the Heritage of Indian Peoples and Native Hawaiians: Human Rights, Sacred Objects, and Cultural Patrimony, 24 Ariz. St. L. J. 175, 176 (1992) [hereinafter Implementing National Policy] (discussing the policies surrounding the motivations for the implementation of NAGPRA).

[17] See generally Chilkat Indian Village Tribal Courtchilkat Indian Village, IRA v. Johnson, Chilkat Tr. Ct., No. 90-01

[18] E.g., If the park ranger in charge of Mt Rushmore attempted to sell the property it is clear that American society would consider the sale invalid, since as is the case with many disputed indigenous heritage objects, possession, dominion and control by an individual does not necessarily provide the right of alienation. Management – Mount Rushmore, National Park Service. http://www.nps.gov/moru/parkmgmt/index.htm(last visited Apr. 28, 2014). The nuances and particularities of both of these examples, as well as others, are discussed in full in Part III.

[19] See supra, text accompanying note 14. Possession in this case is analogues to the possession or control over federally owned and maintained national treasures and monuments.

[20] Cf., In Australia, in John Bulun Bulun & Anor v R & T. Textiles Pty Ltd. [1998] FCA 1082, Federal Court of Australia (Sept. 3, 1998), the individual “in charge” of a particular sacred artwork did not according to local aboriginal law have the right to license the work for a for a particular use in one instance but was permitted in under different conditions.

[21] E.g., Helfer, Laurence R. & Graeme W. Austin. HUMAN RIGHTS AND INTELLECTUAL PROPERTY: MAPPING THE GLOBAL INTERFACE. (Edward Elgar eds., 2nd ed. 2012).

[22] See generally NAGPRA, supra, note 3. See also Implementing National Policy, supra note 16, at 178, 190.

[23] NAGPRA, supra note 3, at 166-182.

[24]Chilkat Indian Village Tribal Courtchilkat Indian Village, IRA v. Johnson, Chilkat Tr. Ct., No. 90-01

[25] NAGPRA, supra note 3, at 180.

[26] Id.

[27] Supra, note 22.

[28] Id.

[29]Since, under traditional law heritage objects could not be alienated without communal consent, their sale and removal from the village was found to be invalid and contrary to local custom and traditional law. Johnson, Chilkat Tr. Ct., No. 90-01

[30] Id. at 2.

[31] Id. at 7-19.

[32] Where the federal court remanded the case to a tribal court since the items at issue were stolen from federally recognized territory of a federally recognized tribe. Id. at 2-3.

[33] Bureau of Indian Affairs, Department of the Interior, 25 e-CFR §§ 1-299 (2014).

[34] Implementing National Policy, supra note 16, at 191.

[35] See Id. at 189.

[36] Id. at 181.

[37] Id.

[38] In Id. at 178.

[39] Babbitt, NAGPRA as a Paradigm, supra, note 4. (discussing of the political and legal context NAGPRA was passed under)

[40] Implementing National Policy, supra note 16, at 191. 180.

[41] R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can.).

[42] See generally Id.

[43] Id. This sovereignty and legal entity status of federally recognized Indian tribe is an important factor in the smooth functioning of NAGPRA.

[44] NAGPRA, supra note 3.

[45] See generally Implementing National Policy, supra note 16.

[46] NAGPRA, 25 USCA §§ 3002(a) (1990).

[47] See Babbitt, NAGPRA as a Paradigm, supra, note 4. NAGPRA put significant financial burdens on poorly funded museums when the statute was originally implemented and lead to institutional resentment among the museum community.

[48] See infra note 53.

[49] NAGPRA, 25 U.S.C. 3008(a), Grants to Museums (1990). (authorized the Secretary of the interior to make grants to museums “for the purpose of assisting the museums in conducting the inventories and identification” Id. 3008(b), that was required of museums and federal agencies under this title)

[50] NAGPRA, supra note 3.

[51] NAGPRA, 25 U.S.C. 3007, Penalty assessment, museums (1990).

[52] See NAGPRA, 25 U.S.C. 3002(d), Inadvertent discovery of Native American remains and objects (1990); See also NAGPRA, 25 U.S.C. 3002(c), Intentional excavation and removal of Native American remains and objects (1990).

[53] See, Id., at 175.

[54] See NAGPRA, 25 U.S.C. 3003(a), (1990); Id. at 3003(b).

[55] The definition of heritage objects is exceedingly broad, NAGPRA only allows for claims of objects that fall into the specified categories, laid out in the statute, however broad and culturally accommodating the statutory definitions may be. Issues of under inclusiveness are discussed later in Part IV. Id.

[56] 25 C.F.R. Part 83 Procedures for Establishing that an American Indian Group Exists as an Indian Tribe (“AUTHORITY: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and 209 Departmental Manual 8. SOURCE: 59 FR 9293, Feb. 25, 1994, unless otherwise noted.” Id.).

[57] Id. (establishing procedures to determine that and American Indian group exists as an Indian tribe in the processes of receiving federal recognition).

[58] NAGPRA, supra note 3.

[59] See BELL ET AL, supra note 4, at 19

[60] See, E.g. id., at 20-21.

[61] Id. at 21.

[62] Id. at 22, 24.

[63] Indian Act, R.S.C. 1985, c. I-5 (Can.).

[64] Franz Boas, “the Indians of British Columbia,” Popular Science Monthly, March 1888 (vol. 32), p. 636

[65] Id. at 20

[66]Catherine Bell and Robert K. Paterson, 2 Restructuring the Relationship: Repatriation and Trade n.1 (2009). See generally Darlene Johnston, Preface to Catherine Bell et al 2 Restructuring the Relationship: Repatriation and Trade at viii – 11, (1st ser. 2.1 2012)

[67] See Bell et al, Restructuring, supra note 4,

[68] Id. at 25.

[69] Compare In the US under NAGPRA there is no concern for the native group’s ability to properly care for the object in question. NAGPRA, supra note 3. With the Canadian policy that dictates, even where objects could otherwise be returned to the indigenous community, concerns about the community’s ability to maintain and care for an object can supersede the right to repatriation. This is especially true if the community does not plan to display and object that has gained a secondary meaning or cultural importance through its display in the museum, the planned use of the object by the community is outside of the parameters of museum conservation practices or any number of additional concerns about the objects future care. See Bell et al, Restructuring supra note 4, at 37. (discussing objects that are determined to be too delicate to move may be kept by the museum). Additionally, communities that lack the resources to maintain objects in accordance with modern conservation standards may also be denied a request of objects, even when they were taken under threat or use of force from that community. Id. at 34, 36. All of these concerns can prevent the return of objects for any number of reasons including negligence liability that can be imposed on museum administrators if objects are returned and subsequently improperly handled under modern conservation standards. Id. at 38. Negligence liability is discussed in greater detail in Part III section c.

[70] NAGPRA does provide a single limited exception where items do not have to be returned, even if they fall within the statutorily prescribed categories for repatriation. Under PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS, §10.11 Disposition of culturally unidentifiable human remains. This regulation applies when human remains can be identified as Native American but the exact lineal decedents cannot be determined. NAGPRA, supra note 3, at 181.

[71] See Bell et al, Restructuring, supra note 4, at 37.

[72] R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can.). Their rights have not been extinguished by treaty or legislation prior to the constitutional protection enacted in 1982. Id. at 49., See Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c, 11(U.K.). See also Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.). (giving the framework for under standing title based on treaties formed between the First Nations and Canada are the strongest when state rights explicitly). Since the scope of these rights is delineated by the terms of the treaty. These rights are immune from provincial legislation, unless the treaty incorporates such legislation. The treaty does not however exhaust First Nation rights. See generally R. v. Badger, [1996] 1 S.C.R. 771 (Can.). cited with approval in R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can.). (Such rights exist apart from the treaty, “provided that they are not substantially connected the rights crystalized in the treaty or extinguished by its terms.”). The Court is recognizing that the First Nation’s previously had sovereignty, but the arrival of Europeans subsumed that sovereignty under the French and later under the English Crown. Id.

[73] R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can.). at 89. (discussing case law stating First Nation rights are derived from treaty/land rights). See also Johnson v. M’Intosh, 8 Weaton 543 (1823). Cf. Worcester v. State of Georga, 6 Petrs 515 (1832).

[74] Van der Peet, supra note 7.(according to the court, the totems are in some way proof that the tribe has the rights to control any objects that come from that First Nation).

[75]Brian Slattery, “The Generative Structure of Aboriginal Rights” (2007) 38 Sup. Ct. L. Rev. (2nd) 595 to 600.

[76] Van der Peet, supra note 7, at 270. (recognizing the principle that common law recognizes customary title subject to the restriction that it is subject to an exception in favor of traditional title)

[77] Id. at 89-91 (Supreme Court provides an extensive analysis of Canadian property law in relation to the Crown and legal vestiges form Briton).

[78]Van der Peet, supra note 7.

[79]Bell et al, Restructuring, supra note 4, 37, 40-43 (applying provincial case law and legislation has led to uneven and non-uniform application of Supreme Court Jurisprudence in Canada).

[80] See generally Van der Peet, supra note 7

[81] “In Canada’s system of government, the power to govern is vested in the Crown but is entrusted to the government to exercise on behalf and in the interest of the people.” Canadian Crown, Government of Canada. http://canadiancrown.gc.ca/eng/1396015117980 (last visited May 9, 2014).

[82] Van der Peet, supra note 7, at 32.

[83]Bell et al, Restructuring, supra note 4, at 22.

[84] See supra text accompanying note 55.

[85]Bell et al, Restructuring, supra note 4, at 27.

[86] See generally Bell et al, Restructuring, supra note 4. (discussing objects in government institutions)

[87] Compare Bell et al, Restructuring, supra note 4. (Regarding first nation title over land). First Nations who possess and have title over land are free to occupy and use at their own discretion, id. at 45, federal and provincial legislation applies to the title of the land, “pursuant to the governments’ respective general legislative authority. First nation title is thus interpreted through common law and regulated under strict conditions that must be adhered too. Accord Van der Peet, supra note 7, and “in fact, [first nation] title exists when the bundle of*.*.*.*rights is large enough to command the recognition of sui generis proprietary interest to occupy and use the land.” Id. at 105, the court goes on to state: “It follows that*.*.*.*rights can be incidental to*.*.*.*title but need not be; these rights are severable from and can exist independently oftitle….the source of these rights is the historic occupation and use of ancestral land by the natives” Id. at 105, with the US reservation system where the US government recognizes the sovereignty of the territory, and independent administration by Native Americans. Bell et al, supra note 4, at 45.

[88] Van der Peet, supra note 7, at 1; See, E.g., Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c, 11(U.K.).

[89] Van der Peet, supra note 7, at 2; But see Bell et al, Restructuring, supra note 4, at 25.

[90] Van der Peet, supra note 7, at 2.

[91] Id. at 3.

[92] These rights and privileges are promulgated by various agencies, provinces and regulatory bodies only to the extent that First Nation rights to participate in practices, customs and traditions falls within that body’s mandate, leaving these rights uncoordinated and ad hoc Bell et al, Restructuring, supra note 4, at 25-26.

[93] Van der Peet, supra note 7, at 3.

[94]Bell et al, Restructuring, supra note 4, at 27.

[95] Van der Peet, supra note 7, at 3.

[96] Id. at 29

[97] Van der Peet, supra note 7, at 29, 31.

[98] See, E.g., R. v. Sioui, [1990] 1 S.C.R. 1025. (discussing the policy of the British to maintain relations with First Nations in a similar manner to other sovereign nations, allowing autonomy and interfering in internal affairs as little as possible).

[99] “Frozen Rights” approach. Van der Peet, supra note 7, at 34. (being able to claim the right to participate in only a practice, custom or tradition that has gone on continuously since pre-contact times).

[100] Van der Peet, supra note 7, ¶ 65

[101] The Metis people of Canada are a recognized first nation with both European and aboriginal ancestry. However, due to the interpretation by the court imposing pre-contact requirements to assert rights their rights and as a first nation have encounters considerable controversy and dispute. See Van der Peet, supra note 7, at 3, 34-35, 60, 84.

[102]Circumstances surrounding each claim are distinct and customs and practice can only be applied to the specific relevant community in question. Evidence of tradition, custom and practice can be proven through oral testimony and methods that would otherwise be inadmissible as not meeting evidentiary standards. See Van der Peet, supra note 7, ¶ 102.

[103]This is in stark contrast to the recognized sovereignty of federally recognized Indian tribal reservations in the US. NAGPRA, supra note 3.

[104]Bell et al, Restructuring, supra note 4, at 4.

[105] Van der Peet, supra note 7, 34-35.

[106] Id. at 35.

[107]Bell et al, Restructuring, supra note 4, at 32. (emphasis added)

[108] Van der Peet, supra note 7, ¶ 182-204.

[109]Erin Hanson & Tanisha Salomons, Indiginous Foundations, University of British Columbia, http://indigenousfoundations.arts.ubc.ca/home/land-rights/van-der-peet-case.html.

[110] Van der Peet, supra note 7, at 34. (According to the analysis of the court, the return of an object would be more likely than in the case of secular object of less distinctive origins owned by an individual with clear title). In this instance, repatriation becomes more unlikely, even if a particular individual can trace that object, i.e. a family heirloom, through well-documented hard evidence to their direct ancestor. The return of the object also becomes more unlikely if it was placed in a museum and has attained a particular significance to the modern local community or nation as a whole. Here, the court sought to balance the return of objects of importance of particular groups while maintain the trove of objects in Canadian museums that it now considers to be the heritage of all Canadians. Id. ¶ 179.

[111] Id.

[112] See Bell et al, Restructuring, supra note 4, at 34.

[113]Bell et al, Restructuring, supra note 4, at 36.

[114] Van der Peet, supra note 7, ¶ 274.

[115] Id. ¶ 274.

[116] Id. ¶¶ 210-211

[117] Brian Slattery, The Generative Structure of Aboriginal Rights, 38 Supp. Ct. L. Rev. (2nd) 595, 600 (2007). (Can.). The generic rights in his analysis are all applicable to all First Nations in Canada.) noted in Bell et al, Restructuring, supra note 4, n.51. Proposed solutions to this issue are discussed in Part IV of this article.

[118]Bell et al, Restructuring, supra note 4, 25-26.

[119] Id. at 26.

[120]Bureau of Indian Affairs’, Department of the Interior, http://www.bia.gov/ .

[121]Bell et al, Restructuring, supra note 4, at 36. (emphasis added).

[122] Bruce Ziff, Principles of Property Law, 133-139, (Toronto: Thomson Canada Ltd., eds., 2006), noted in Bell et al, supra note 4, n.n. 44, 109.

[123] Ziff, supra note 122, at 108-115.

[124]Bell et al, Restructuring, supra note 4, at 37. The legislation specific to each province is beyond the scope of the national perspective of this article. For a general overview of relevant provincial museum and archeological legislation see generally Bell et al, Restructuring, supra note 4.

[125] See Catherine Bell, Aboriginal Claims to Cultural Property in Canada: A comparative Analysis of the Repatriation Debate, 17:2 Am. Indian L. Rev. 457 (1992) (including but are not limited to reporting of discoveries and the requirements of permits for excavation sites), cited with approval in Bell et al, Restructuring, supra note 4, nn.46.

[126] See Id.

[127]This does not mean however, that once it is determined that objects will not be returned the relationship between the First Nation of its origin and the object ends. Bell et al, Restructuring, supra note 4, at 38. The museums fiduciary obligations in some instances require consultation with the First Nation as to the display and proper care of the heritage objects. Id. at 39. Some provincial legislation also provides a framework for a loan system allowing First Nation to use heritage objects necessary for ceremonial practice and then returning the objects to the museum when finished. Id.

[128] See Id. at 39. (maintaining in many instances is to the detriment of First nation rights).

[129] See Id. at 51.

[130] Id. at 45-55.

[131]In the US a number of courts have applied a similar negligence standard. Bell et al, Restructuring, supra note 4, at 39, (holding museum trustees to the standard care that a reasonably prudent person would take in dealing with his or her own property).

[132] Canadian Museum Association, Ethical Guidelines (1999), at E 4.4, http://www.museums.ca/Publications/Reports_and_Guidelines/?n=15-23 (last visited May 11, 2014), [hereinafterCMA Guidelines].

[133]Bell et al, Restructuring, supra note 4, 38.

[134] CMA Guidelines, supra note 132, at c. 1, http://www.museums.ca/Publications/Reports_and_Guidelines/?n=15-23

[135]Bell et al, Restructuring, supra note 4, at 39, (discussing the balancing the various consideration of executives).

[136] CMA Guidelines, supra note 132

[137] Id. at c. 1.

[138]Bell et al, Restructuring, supra note 4, at 30.

[139] Oxford Dictionaries, nemo dat, http://www.oxforddictionaries.com/us/definition/american_english/nemo-dat

[140]See Mohawk Bands of Kahnawake, Akwesesne and Kanesatake v Glanbow-Alberta Insitutue, [1988] 3 C.N.L.R. 70 (Alta. Q.B.) (Can.) (asserting the institute displayed ceremonial masks with spiritual powers necessary for ongoing traditions was contrary to the laws of the Mohawk Nation); construed in Bell et al, supra note 4, at 46.

[141] See generally Task Force Report on Museums and Frist Peoples: Turning the Page: Forging New Partnerships Between Museums and Frist Peoples, 3d ed. (Ottawa: AFN) (Can.).[hereinafter Task Force]

[142] Task Force, supra note 141.

[143]Bell et al, Restructuring, supra note 4, 60-63.

[144] NAGPRA, supra note 3.

[145] See generally Bell et al, Restructuring, supra note 4.

[146]Bell et al, Restructuring, supra note 4, at 51.

[147] This is similar to the qualifications for return present in NAGPRA, however, under Canadian law the bar for objects to qualify for return is set significantly higher than in the US. See generally NAGPRA, supra note 3.

[148]Bell et al, Restructuring, supra note 4, 51-52.

[149] The requirement under NAGPRA on many small or underfunded museums in the US was considered a financial burden. Bell, Restructuring, supra note 4, at 57.

[150] Id.

[151] Id. at 55. See also James D. Nason, “Beyond Repatriation: Cultural Policy and Practice for the Twenty-First Century” in Bruce Ziff and Pratima V. Rao, eds., Borrowed Power: Essays on Cultural Appropriation (New Brunswick, NJ: Rutgers University Press, 1997) 155 at 291.

[152] Babbitt, NAGPRA as a Paradigm, supra note 4, at 64.

[153]Bell, Restructuring, supra note 4, at 56.

[154] Id.

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