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Who Controls Native Cultural Heritage?: "Art," "Artifacts," And The Right To Cultural Survival

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Chapter Summary

To understand why the dominant legal framework for cultural resources protection is insufficient to fully protect tribal rights, it is necessary to understand what the concept of cultural heritage means to Native peoples. Because Native peoples' cultural claims are viewed as "different" from those of other litigants, they are often not afforded protection under the structures that protect non-Native interests in "religious freedom" or "cultural property". Similarly, conceptual and linguistic categories of "art" and "artifacts" are employed to limit and qualify Native rights. These conceptual challenges are undergirded by historical themes of "discovery" and "conquest" that have privileged certain values through the establishment of "rights" to certain aspects of cultural heritage, while negating or dismissing corollary rights. This chapter evaluates the limitations of the existing legal framework that applies to Native cultural heritage and highlights the need to develop inter-cultural frameworks that can protect the core values of tribal cultures.

Keywords: legal system; Native cultural heritage

10.1163/ej.9789004160361.i-466.7
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