Introduction

For more than two centuries, the United States has maintained—in law and in practice—a colonial system designed to destroy Indigenous peoples’ culture. 1Open this footnote Close this footnote 1 For purposes of this Essay, “Indigenous culture” is used capaciously, encompassing all those aspects of material and intangible lifeways of Native people, including languages, religious practices, ceremonies, traditional knowledge, and more. …Open this footnote Close My work has explored this phenomenon from a property lens, explaining how attacks on Indigenous cultures traverse and encompass all categories of property, including real, tangible, and intangible. 2Open this footnote Close this footnote 2 See, e.g., Angela R. Riley, The Ascension of Indigenous Cultural Property Law, 121 Mich. L. Rev. 75, 84-85 (2022) (defining cultural property as including real, tangible, and intangible cultural properties); Kristen A. Carpenter, Sonia K. Katyal, & Angela R. Riley, In Defense of Property, 118 Yale L. J. 1022, 1034 (2009) (same). …Open this footnote Close From a property perspective, these destructive systems sought to take Indigenous peoples’ sacred lands (real property), unearth and hold hostage funerary and sacred items of cultural patrimony (tangible property), and appropriate, commodify and suppress Indigenous knowledge (intangible property). Thus, “cultural property” has been defined as its own category, as a property formation that aligns with and encompasses—though not perfectly—all these other categories, oftentimes referred to as property’s “fourth estate.” 3Open this footnote Close this footnote 3 Carpenter et al., supra note 2, at 1032. …Open this footnote Close I have spent two decades—oftentimes in collaboration with other scholars—writing about the ways in which Indigenous peoples’ cultural property has been taken, distorted, and even destroyed by colonial forces, and explaining how it is tied to centuries of dispossession, genocide, and cultural hegemony. 4Open this footnote Close this footnote 4 See, e.g., id.; Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, 94 Tex. L. Rev. 859 (2016) (explaining the connection between dispossession of land and the taking on of Indian identity once actual Indians were out of the way); Angela R. Riley & Sonia K. Katyal, Aunt Jemima Is Gone. Can We Finally End All Racist Branding?, N.Y. Times (June 19, 2020) (explaining the link between white supremacy, racism, and the use of racial tropes in branding and marketing of American products), https://perma.cc/‌UUY9-3SVE. …Open this footnote Close Those arguments need not be recounted here.

Much work remains to repair the enormous wounds resulting from centuries of genocidal and oppressive policies 5Open this footnote Close this footnote 5 See, e.g., Deb Haaland, Deb Haaland: The Impact of President Biden’s Apology to Indian Country, U.S. Dep’t of Interior: Blog of Interior (Jan. 6, 2024) (discussing President Biden’s apology to Indian country for the United States’ boarding school policies), https://perma.cc/‌‌8B9E-QV6X. …Open this footnote Close and to change the systems that continue to fall short of protecting Indigenous culture. 6Open this footnote Close this footnote 6 See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441-42, 447 (1988) (holding that the First Amendment does not protect Indigenous peoples’ sacred sites from governmental destruction, even when there is no compelling governmental interest in doing so). …Open this footnote Close However, over the last several decades, a series of laws have been enacted at the tribal, national, and international levels that have finally begun to turn the tide with regard to Indigenous rights to culture. A few examples include increased protection for Indigenous artistic creations, 7Open this footnote Close this footnote 7 Indian Arts and Crafts Act (IACA) of 1990, Pub. L. No. 101-644, 104 Stat. 4662 (codified as amended at 25 U.S.C. § 305); see also Riley, supra note 2, at 122-30 (laying out tribal laws that have been enacted to protect Indigenous Peoples’ intangible cultural property). …Open this footnote Close rights to repatriation of ancestors and cultural patrimony, 8Open this footnote Close this footnote 8 Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C. §§ 3001-3013). …Open this footnote Close laws decriminalizing Indigenous religious practices, 9Open this footnote Close this footnote 9 See, e.g., American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341, 92 Stat. 469 (codified at 42 U.S.C. § 1996); American Indian Religious Freedom Act Amendments of 1994, Pub. L. No. 103-344, § 2, 108 Stat. 3125, 3125 (codified at 42 U.S.C. § 1966a) (extending peyote use protections to enrolled tribal members); 16 U.S.C. § 668a (permitting members of federally recognized tribes to take eagle feathers). …Open this footnote Close and the development of a treaty to protect Indigenous peoples’ genetic resources. 10Open this footnote Close this footnote 10 WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, World Intell. Prop. Org. (May 24, 2024), https://perma.cc/‌RL47-YWPS. …Open this footnote Close A significant body of scholarly work has documented these changing laws and policies and has set forth the impacts they have had in Indigenous communities. 11Open this footnote Close this footnote 11 See generally Kristen A. Carpenter, Living the Sacred: Indigenous Peoples and Religious Freedom, 134 Harv. L. Rev. 2103 (2021) (reviewing Michael D. McNally, Defend the Sacred: Native American Religious Freedom Beyond the First Amendment (2020)) (detailing the history of American jurisprudence relevant to protecting Native sacred sites, religions, and ceremonial practices); Wallace Coffey & Rebecca Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, 12 Stan. L. & Pol’y Rev. 191 (2001) (explaining how political sovereignty is important for Native communities, but “cultural sovereignty,” including religious freedom, is essential for tribes to survive and thrive); Trevor Reed, Restorative Justice for Indigenous Culture, 70 UCLA L. Rev. 516 (2023) (advocating for a “restorative justice” approach to Native peoples’ access to their own culture and cultural products). …Open this footnote Close

In just the last few years, there has been even more movement at the federal level to protect Indigenous rights to culture. Congress passed the Safeguard Tribal Objects of Patrimony (STOP) Act in 2021 to prevent further international exportation of sacred tribal cultural items. 12Open this footnote Close this footnote 12 Pub. L. No. 117-258, 136 Stat. 2372 (codified at 25 U.S.C. § 3071 (2021)). …Open this footnote Close In 2023, the Department of Interior enacted a new set of regulations to further facilitate repatriation of human remains, funerary objects, and items of cultural patrimony pursuant to the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). 13Open this footnote Close this footnote 13 Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), Pub. L. No. 101-601, 104 Stat. 3048 (codified as amended at 25 U.S.C. §§ 3001–3013 (1990)); Office of Communications, Interior Department Announces Final Rule for Implementation of the Native American Graves Protection and Repatriation Act, Nat’l Park Serv. (Dec. 6, 2023), https://perma.cc/‌TJ37-CJ4J. …Open this footnote Close The federal government has recently proposed possible amendments to the Indian Arts and Crafts Act (IACA) to address cutting-edge issues raised by the impacts of contemporary creative processes of collaboration, production, and technology. 14Open this footnote Close this footnote 14 See Interior Department Seeks Input on Modernizing Indian Arts and Crafts Act Regulations, U.S. Dep’t of Interior (Apr. 4, 2023), https://perma.cc/‌2748-N6YC. …Open this footnote Close Under the direction of the Biden administration, federal agencies and Indian tribes entered into hundreds of cultural resource and land co-management agreements to protect natural resources and sacred sites. 15Open this footnote Close this footnote 15 Press Release, U.S. Department of the Interior, Secretary Haaland Applauds 400 Co-Stewardship Agreements Under the Biden-Harris Administration (Dec. 9, 2024), https://perma.cc/‌3BP9-YEY9; see Kevin K. Washburn, Facilitating Tribal Co-Management of Federal Public Lands, 2022 Wis. L. Rev. 263 (2022) (discussing the many ways in which tribes and the federal government may enter into co-management agreements to steward lands and cultural resources). …Open this footnote Close And Biden both designated several sites sacred to Native tribes as national monuments and restored the Obama-era boundaries of Bears Ears in southern Utah. 16Open this footnote Close this footnote 16 See Protecting Bears Ears National Monument, Native American Rights Fund (describing the litigation around Bears Ears Monument and the scope of the President’s authority pursuant to the Antiquities Act), https://perma.cc/‌A5X3-RCU9 (archived May 25, 2025). …Open this footnote Close These recent changes offer even greater possibilities for the protection of Indigenous culture moving forward.

With this as background, this Essay details the rapidly changing legal landscape that protects Indigenous rights to culture within the United States. Part I describes the history of attempts by the United States to legally suppress Native culture, then turns to U.S. law and policy of the last several decades that has sought to reverse these colonial-era efforts. Part II turns the focus to the legal developments of just the last few years focusing specifically on STOP Act and the Department of Interior regulations updating NAGPRA—highlighting the potential for these nascent changes to impact Indigenous Peoples’ rights to culture moving forward. The Essay concludes by briefly offering some insights as to how Indigenous rights scholars might consider approaching possible legal challenges to these laws in the current legal landscape.

I. Indigenous Rights to Culture: The Legal Landscape

A. The Take-Down: Hundreds of Years of Cultural Decimation

From the earliest point of contact, Native people were seen as inferior to White settlers along virtually every axis: language, culture, lifeways, race, and beyond. But a central feature of the subjugation of Native people was rooted in religious difference. 17Open this footnote Close this footnote 17 See Nancy Shoemaker, A Strange Likeness: Becoming Red And White in Eighteenth-Century North America 129 (2004) (noting early settlers identified primarily as “Christian,” rather than “white”). …Open this footnote Close For more than a hundred years from the point of contact, religion—not race—served as the primary distinction between colonizers and Natives. From this vantage point, Europeans judged Indians as savage infidels who were doomed to hell and would not ascend to heaven in the afterlife. 18Open this footnote Close this footnote 18 See generally, Robert A. Williams, Jr., Savage Anxieties: The Invention of Western Civilization 195-96 (2012); Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest 121-50 (1990) (chronicling how western Europeans used law and religion as an effective instrument during genocidal conquest and colonization for centuries). …Open this footnote Close Thus, much of early colonization—and the massive move toward assimilation in the century that followed—focused on destroying Native religion and converting Native people to Christianity. The earliest case that dealt with Indian property rights before the Supreme Court, Johnson v. M’Intosh, affirmed this point. 19Open this footnote Close this footnote 19 21 U.S. (8 Wheat.) 543 (1823). …Open this footnote Close Chief Justice John Marshall reiterated that, although Natives were (possibly unfairly) being dispossessed of their lands, the doctrine of discovery was nevertheless justified, in part, because of the “cultural superiority” 20Open this footnote Close this footnote 20 Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation, 107 Harv. L. Rev. 381, 388 (1993). …Open this footnote Close of Europeans, which was rooted in their “Christian nature” 21Open this footnote Close this footnote 21 Id. …Open this footnote Close and “superior genius”. 22Open this footnote Close this footnote 22 Id. (quoting Johnson, 21 U.S. at 573). …Open this footnote Close From this vantage point, the exchange of civilization and Christianity for the continent was both justified and defensible.

The overlapping relationship between Indigenous culture and Indigenous religion has been explicated thoroughly in previous scholarship (including my own). 23Open this footnote Close this footnote 23 See, e.g., Carpenter et al., supra note 2, at 1115 (quoting Jimmie Durham, a Cherokee litigant, explaining that land, culture, and religion are overlapping concepts in Cherokee epistemology). …Open this footnote Close In Native cultures, religion is not an activity that is siloed off and only undertaken in certain spaces or on specific days of the week. 24Open this footnote Close this footnote 24 Riley, Ascension, supra note 2, at 87 (describing the “complex relationship between religion, land, culture, and law” in Indigenous communities). …Open this footnote Close In fact, religion is an inadequate term for how spiritual beliefs and practices are actually experienced in Native communities, as tribes are, in the words of Robert Cover, “paideic” societies 25Open this footnote Close this footnote 25 Robert M. Cover, The Supreme Court 1982 Term––Forward: Nomos and Narrative, 97 Harv. L. Rev. 4, 12-14 (1983). See also Judith Resnik, Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover, 17 Yale J.L. & Human. 17, 50 (2005) (further linking Cover’s theory of paideic communities to Indian tribes in her critique of a Supreme Court case involving the Santa Clara Pueblo Indian tribe). …Open this footnote Close wherein culture, lifeways, and spiritual beliefs are inextricably intertwined. 26Open this footnote Close this footnote 26 Cover, supra note 25, at 32 n.94 (including Indian tribes as an example of a “collective, norm-generating community”); Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Calif. L. Rev. 799, 813 n.89 (2007) (discussing Resnik’s work focused on Indian tribes as paideic communities, using Cover’s theory). …Open this footnote Close Given this context, attacks on Native culture and assimilationist policies concomitantly sought to destroy Native spiritual and religious practices. As an example, the Courts of Indian Offenses, which were established on reservations during the nineteenth century, were designed “for the express purpose of ‘civilizing’ Indians, to make Native people abandon their ‘savage and barbarous practices’ by imposing a criminal legal regime.” 27Open this footnote Close this footnote 27 Alexandra Fay, Courts of Indian Offenses, Courts of Indian Resistance, Mich. L. Rev. (forthcoming 2026) (manuscript at 3), (quoting Denezpi v. United States, 595 U.S. 591, 606 (2022) (Gorsuch, J., dissenting)), https://perma.cc/‌9Y26-ZEF9 (archived May 25, 2025). …Open this footnote Close The list of offenses targeting Native culture included Indigenous practices that were inapposite to western, Christian systems, such as plural marriage, religious (non-Christian) dances and ceremonies, and the activities of traditional medicine men. 28Open this footnote Close this footnote 28 Id. …Open this footnote Close The theme of “saving” Indians by destroying traditional Native religion and practices, remained pronounced throughout the nineteenth century. 29Open this footnote Close this footnote 29 Id. (citation omitted). …Open this footnote Close

Efforts toward religious destruction were driven, in part, by the federal government’s growing concern that Native religious ceremonies and practices were providing a source of extraordinary power to Natives who were ready and willing to go into battle to defend their lands and their way of life. 30Open this footnote Close this footnote 30 John Rhodes, An American Tradition: The Religious Persecution of Native Americans, 52 Mont. L. Rev. 13, 28 (1991) (describing non-Indians’ “terror” at the possibility of a Native “militaristic uprising,” inspiring the government to take “affirmative steps to check the religious fervor of the Lakota.”). …Open this footnote Close During the height of the Indian Wars on the northern plains during the mid to late 1800s, these Native practices inspired fear in settlers and in the U.S. military, as Indians’ ferocity and bravery on the battlefield was seen as presenting an acute threat to the military power of the United States. 31Open this footnote Close this footnote 31 Id. at 26-28. …Open this footnote Close

The battle over the Black Hills provides an iconic example of the destruction of Native cultural—and, therefore, religious—rights in American history. Despite the Lakota Sioux having treaty-protected rights to their sacred Black Hills, General Armstrong Custer and the Seventh Cavalry invaded Paha Sapa when gold was discovered, breaking the treaty. 32Open this footnote Close this footnote 32 .Richard Lazarus, Black Hills/White Justice: The Sioux Nation Versus the United States, 1775 to the Present 68, 84-90 (1991); Angela R. Riley, Indians and Guns, 100 Geo. L. Rev. 1675, 1699-1700 (2012). …Open this footnote Close But the Lakota and other Plains tribes were prepared to fight to defend their lands. 33Open this footnote Close this footnote 33 United States v. Sioux Nation of Indians, 448 U.S. 371, 379 (1980) (describing the U.S. military campaign to attack the “hostile Sioux,” who fought back, leading to “Sitting Bull’s notable victory over Custer’s forces at the battle of the Little Big Horn.”). …Open this footnote Close After a ferocious battle with numerous revered Indian leaders—including Crazy Horse, Red Cloud, and Sitting Bull—the United States military suffered its first ever defeat at the Battle of the Little Bighorn, now also known as Custer’s Last Stand. But the victory for the Sioux was short-lived, as the United States responded to Custer’s defeat by imposing harsh conditions of reservation confinement on those involved and, ultimately, coercing the Sioux into ceding their lands. 34Open this footnote Close this footnote 34 Id. (describing the Sioux victory over Custer as “short-lived” and explaining the subsequent events of reservation confinement and land dispossession). …Open this footnote Close

Around this time, prophecies of an Indian resurgence that would “reverse the tide of white conquest” began to circulate across the west. 35Open this footnote Close this footnote 35 Benjamin Hedin and Nick Estes, The Siege of Wounded Knee Was Not an End But a Beginning, New Yorker (May 6, 2023),https://perma.cc/‌E5XF-UB4L. …Open this footnote Close  This “rebirth and renewal” of Indian Nations was rooted in a belief that the ceremonial Ghost Dance would “connect the living and the dead” and allow for Native resistance to white settlement. 36Open this footnote Close this footnote 36 Id. …Open this footnote Close The Ghost Dance was soon taken up by many Western tribes, including the Lakota. 37Open this footnote Close this footnote 37 Id. …Open this footnote Close The United States responded to news of the spread of the Ghost Dance with military force, sending federal troops out to “track down and arrest many of the movement’s leaders” for defying the federal policy of prohibiting the practice of Native religious ceremonies. 38Open this footnote Close this footnote 38 Id. …Open this footnote Close Sitting Bull, who defeated Custer in battle, was one of the leaders who encouraged the spread of the Ghost Dance. 39Open this footnote Close this footnote 39 Id. …Open this footnote Close When Ghost Dance practitioners met together with Sitting Bull in 1890 at the Standing Rock Agency, police arrived at the Agency to arrest Sitting Bull, ultimately shooting and killing him. 40Open this footnote Close this footnote 40 Id. …Open this footnote Close The remaining Ghost Dance adherents escaped to Wounded Knee Creek, where they were prepared to negotiate their surrender. But soldiers from the U.S. Seventh Cavalry – the regiment previously led by Custer – caught up to them and shot and killed three hundred Lakota Indians, “including many starving women and children” in one of the most shameful massacres in U.S. history. 41Open this footnote Close this footnote 41 Id. …Open this footnote Close

The Massacre at Wounded Knee in 1890 marked the “end of the Plains [Indian] wars,” 42Open this footnote Close this footnote 42 Id. …Open this footnote Close signaling “the passing of the Indian frontier” 43Open this footnote Close this footnote 43 .Robert M. Utley, The Indian Frontier 1846-1890 249 (Ray Allen Billington, Howard R. Lamar, Martin Ridge, David J. Weber eds., Univ. of N.M. Press rev. ed. 2003). …Open this footnote Close and the end of tribal military resistance more broadly. 44Open this footnote Close this footnote 44 Id. …Open this footnote Close

As tribes resisted removal, 45Open this footnote Close this footnote 45 See Utley, supra note 43, at 33 (rev. ed. 2003) (“Throughout the 1830s and 1840s the eastern Indians were uprooted and moved westward. Some fifty thousand people made the trek, many at great cost in suffering, hardship, and impoverishment.”); T.S. Twibell, Rethinking Johnson v. M’Intosh (1823): The Root of the Continued Forced Displacement Despite Cobell v. Norton, 23 Georg. Immigr. L.J. 129, 153 (2001) (“A number of Indian tribes resisted removal.”). …Open this footnote Close reservation confinement, 46Open this footnote Close this footnote 46 See generally Rennard Strickland, The Indians in Oklahoma (1980) (book-length treatment about the forced relocation of tribes to the Indian Territory and onto reservations via policies like the Indian Removal Act and events such as the Trail of Tears); United States v. Sioux Nation of Indians, 448 U.S. 371, 379 (1980) (discussing the policy of confining Indians on reservations, “deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government”). …Open this footnote Close and the theft of Indian children for placement into the assimilative boarding schools, 47Open this footnote Close this footnote 47 See David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875-1928 52 (1995). Riley & Carpenter, Owning Red, supra note 4, at 878 (explaining how Indian children were taken against the will of their families and placed into boarding schools, many far away from reservations.). …Open this footnote Close  the U.S. government made the practice of Native religion all but impossible, 48Open this footnote Close this footnote 48 See, e.g., Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814, 817 (10th Cir. 1999) (“In 1892, Congress outlawed the practice of traditional Indian religious rituals on reservation land. Engaging in the Sun Dance, one of the ceremonies at issue in this case, was punishable by withholding 10 days’ rations or 10 days’ imprisonment.”) (citation omitted). …Open this footnote Close with many practitioners moving underground to avoid detection and violence as missionaries spread across Indian country with a fierce proselytizing mission. 49Open this footnote Close this footnote 49 See Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45 Conn. L. Rev. 387, 409-10 (2012). …Open this footnote Close

The history of American colonization, then, is a history of the destruction of Native culture in all the ways in which contemporary Indians are familiar. These wounds are particularly acute today, as Native Nations attempt to rebuild so much that has been threatened or lost. Though religion (for lack of a better word) is a central feature of this story, it does not stand alone. All of Indian culture—via the mass removal of Indian children, 50Open this footnote Close this footnote 50 .Adams, supra note 47. The forcible removal of generations of Indian children from their families and placed into abusive boarding schools is well documented. Deb Halaand, The Impact of President Biden’s Apology to Indian Country, U.S. Dep’t of Interior Blog (Jan. 6, 2025), https://perma.cc/‌5FNY-5XTF (archived May 25, 2025). …Open this footnote Close the destruction of Indian languages, 51Open this footnote Close this footnote 51 See, e.g., Kristen Carpenter & Alexey Tsykarev, (Indigenous) Language As a Human Rights, 24 UCLA J. Int’l L. & Foreign Affs. 49, 94-95 (2020) (“The federal Indian boarding school program subsequently specifically targeted languages to destroy Indian culture.”); Rebecca Nagle, The US. Has Spent More Money Erasing Native Languages than Saving Them, High Country News (Nov. 5, 2019) (“At the height of the Indian boarding school era, between 1877 and 1918, the United States allocated $2.81 billion (adjusted for inflation) to support the nation’s boarding school infrastructure—an educational system designed to assimilate Indigenous people into white culture and destroy Native languages. Since 2005, however, the federal government has only appropriated approximately $180 million for Indigenous language revitalization.”), https://perma.cc/‌3FJF-B3RN. …Open this footnote Close federally-sanctioned grave robbing, 52Open this footnote Close this footnote 52 This deplorable phenomenon is well documented. See, e.g., Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, in Repatriation Reader: Who Owns American Indian Remains? 125-28 (Devon A. Mihesuah ed., 2000) (“Government headhunters decapitated Natives who had never been buried, such as slain Pawnee warriors from a western Kansas battleground, Cheyenne and Arapaho victims of Colorado’s Sand Creek Massacre, and defeated Modoc leaders who were hanged and then shipped to the Army Medical Museum.”). See also Mary Lynn Murphy, Assessing NAGPRA: An Analysis of Its Success from a Historical Perspective, 25 Seton Hall Legis. J. 499, 502 (2001). …Open this footnote Close the promotion of the study and cataloguing of Native remains, 53Open this footnote Close this footnote 53 See Antiquities Act of 1906, Pub. L. No. 59-209, 34 Stat. 225 (codified as amended at 54 U.S.C. §§ 320301-320303) (treating Native American remains found on federal lands as “objects of antiquity”); Archaeological Resources Protection Act of 1979, Pub. L. No. 96-95, 93 Stat. 721 (codified as amended at 16 U.S.C. §§ 470aa-470ll) (treating Native American remains found on federal lands as “archaeological resources” and property of the United States). …Open this footnote Close and so on and so forth—has been under siege since the earliest contact between Whites and Natives. And these efforts were advanced through the force of law. Thus, it has taken long overdue legal reform to finally begin to turn the tide.

B. Turning the Tide: The Indian Self-Determination Era and Beyond

By the beginning of the twentieth century, American policy had been devoted to mass dispossession, removal, genocide, and assimilation of Indians, for over a century. A key congressional act of the late 1800’s, known as the Dawes Act or General Allotment Act, sought to break up remaining Indian reservation lands where Indians lived collectively and force Indians into individual ownership of tribal lands. 54Open this footnote Close this footnote 54 Ch. 119, 24 Stat. 388 (1887) (repealed in 2000). …Open this footnote Close Ostensibly, this policy was intended to turn Indians into assimilated American farmers; more perniciously, the allotment program aimed to open up “surplus” Native lands for white settlement. 55Open this footnote Close this footnote 55 See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 555-57 (1903) (referring to the “surplus of land” and “surplus lands” that tribes ceded through the allotment agreements); Judith V. Royster, Of Surplus Lands and Landfills: The Case of the Yankton Sioux, 43 S.D. L. Rev. 283, 284 (describing allotment as designed to turn Indians into “Christianized yeoman farmers” as part of a “core of the assimilation policy”). …Open this footnote Close Though the Dawes Act was challenged in the Supreme Court as an unconstitutional taking, the Court upheld it as within the constitutional purview of Congress. 56Open this footnote Close this footnote 56 See Lone Wolf, 187 U.S. at 564, 568. …Open this footnote Close

Perhaps not surprisingly, allotment did not turn Indians into successful farmers. 57Open this footnote Close this footnote 57 See Kristen A. Carpenter & Angela R. Riley, Privatizing the Reservation?, 71 Stan. L. Rev. 791, 816-17 (2019). For a detailed discussion of the consequences of the Dawes Act, land loss, and other policies designed to destroy collective tribal life, see id. at 813-19. …Open this footnote Close Rather, it resulted in the further dispossession of Indian lands, while Indian people themselves still refused to reject tribalism and accept forced assimilation. 58Open this footnote Close this footnote 58 Id. at 816-17. …Open this footnote Close Thus, the federal responsibility to ensure the continued survival of Indians did not subside. When allotment’s massive failure 59Open this footnote Close this footnote 59 Id. …Open this footnote Close was documented by the Meriam Report in 1928, American policy shifted again with the passage of the Indian Reorganization Act (IRA) of 1934. 60Open this footnote Close this footnote 60 Pub L. No. 73-383, 48 Stat. 984 (codified as amended in scattered sections of 25 U.S.C.). …Open this footnote Close The IRA ended the policy of allotment, created mechanisms for tribes to rebuild their land bases, and turned focus to rebuilding tribal governments. One feature of the IRA was to roll out “boilerplate” constitutions—modeled on business charters—to Indian tribes in an attempt to rehabilitate tribal governments. 61Open this footnote Close this footnote 61 Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Court, 56 U. Chi. L. Rev. 671, 703-04 n.149, 712 (1989) (discussing the Meriam Report, the call for an end to allotment, the passage of the IRA, the attempt to restore Indian lands through the IRA, and noting that the IRA “proclaimed Congress to be supportive of Indian self-governance,” calling the IRA provisions “boilerplate”). …Open this footnote Close

Around this time, in response to a mass influx of counterfeit cultural goods into the United States, Congress passed the first ever law protecting Native cultural production, the Indian Arts and Craft Act (IACA). 62Open this footnote Close this footnote 62 Indian Arts and Crafts Act of 1935, ch. 748, § 1, 49 Stat. 891 (codified as amended at 25 U.S.C. §§ 305-305(f)). See Carpenter et al., supra note 2, at 1104. …Open this footnote Close Designed to safeguard reservation economies driven by Indian creative arts, 63Open this footnote Close this footnote 63 25 U.S.C. § 305e; Lindsay R. Johnson & Mary-Kathryn Hawes, From the Trail of Tears to Tam: How United States Trademark Law Fails Native Americans, 21 Wake Forest J. Bus. Intell. Prop. 29, 38 (2020) (“IACA 1935 was specifically enacted to improve the economic status of Native Americans, establish and expand marketing opportunities for Indian people, and assist Indian tribes in developing a framework to support the preservation and evolution of tribal cultural activities.”). …Open this footnote Close the IACA functions similarly to a consumer protection law, in that it requires that goods advertised as Indian (or tribal) made are, in fact, so. 64Open this footnote Close this footnote 64 See id. …Open this footnote Close Violations of the IACA can result in civil or even criminal penalties, 65Open this footnote Close this footnote 65 Indian Arts and Crafts Act of 1990, Pub. L. No. 101-644, §§ 106-107, 104 Stat. 4662, 4665 (codified at 18 U.S.C. §§ 1158(1), 1159(b)(1) and 25 U.S.C. § 305). The 1990 amendment to § 1158 increased the maximum fine for counterfeiting to $250,000. Section 1158 already provided for a maximum prison sentence of five years, which can be imposed in conjunction with a fine. See 18 U.S.C. § 1158. …Open this footnote Close though it has been greatly underenforced. 66Open this footnote Close this footnote 66 Native Am. Arts, Inc. v. Peter Stone Co., U.S.A, No. 08C3908, 2015 WL 3561439, at *5 n.5 (2015) (“Until 1990, the only sanction for violating the false-advertising provision was criminal, and there were no prosecutions—’zero,’ to use Judge Posner’s description in Waldron Corp.”); see, e.g., Jemima Gravatt, The Indian Arts and Craft Act of 1990: Fit for Purpose?, Ctr. For Art L. (Nov. 8, 2023), https://perma.cc/‌DD4H-VYZ6. …Open this footnote Close Historically, many individual Native artisans—and, concomitantly, entire reservation economies—relied on Indigenous traditional knowledge to create remarkable works of art, such as rugs, pottery, quill work, baskets, jewelry, regalia, and more, which served as a meaningful economic driver in reservation economies. 67Open this footnote Close this footnote 67 Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 Ariz. St. L.J. 299, 339 (2002) (noting that the legislative history of the IACA reveals that “counterfeit Indian products were responsible for an annual loss ranging from forty to eighty million dollars per year from the Indian arts and crafts industry in the United States”). …Open this footnote Close Though there has been some controversy surrounding the IACA, 68Open this footnote Close this footnote 68 See generally William J. Hapiuk, Of Kitsch and Kachinas: A Critical Analysis of the “Indian Arts and Crafts Act of 1990”, 53 Stan. L. Rev. 1009 (2001) (there are identity disputes around who can get protection under the Act). …Open this footnote Close it continues to serve a vital function in Indian country, ensuring legitimacy for a growing body of Native artists and artisans. 69Open this footnote Close this footnote 69 See Maya Pontone, Native Artists Fear Proposed Changes to Indian Arts and Crafts Act, Hyperallergic (Sept. 14, 2023), (noting support for the IACA because it protects Native artists), https://perma.cc/‌8VQ6-C6VA. …Open this footnote Close

The pendulum of federal Indian policy over the subsequent decades swung back and forth widely, depending on local, national, and global politics. But since the 1970’s, the United States has been in an era of Native self-determination. 70Open this footnote Close this footnote 70 See Special Message to the Congress on Indian Affairs, Pub. Papers 564, 565-67 (July 8, 1970) (calling for “self-determination without termination” in federal Indian policy) (capitalization altered). …Open this footnote Close In the civil rights era push for Indian rights, tribal leaders called for the United States to live up to its trust obligations to Indian tribes, honor treaties, and reverse course on policies designed to quell Native culture and tribal resurgence. 71Open this footnote Close this footnote 71 .Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 129-49 (2005) (detailing the rise of the modern Indian nation in the post-civil rights era).For discussion of the United States’ course prior to the 1970s, see Vine Deloria, Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence 110 (1974) (noting diminishing power of tribes in treaty negotiations after 1800); The Encyclopedia of Native American Legal Tradition 331-32 (Bruce Elliot Johansen ed., 1998) (detailing the questionable circumstances surrounding the 1851 Treaty of Fort Laramie and the 1868 Fort Laramie Treaty). …Open this footnote Close With regard to rights of cultural protection and religious freedom, Congress and the Executive branch worked together to pivot US law and policy away from prohibition and oppression and toward an at least marginally supportive legal structure. 72Open this footnote Close this footnote 72 .Wilkinson, supra note 71, at xiii (discussing Indian leaders’ responses in the mid-1960s to Congress’s termination policy that would have led to radical assimilation); see R.C. Gordon-McCutchan, The Battle for Blue Lake: A Struggle for Indian Religious Rights, 33 J. Church & St. 785, 785-96 (1991) (discussing the taking of Blue Lake from the Taos Pueblo and its restoration under special religious circumstances); American Indian Religious Freedom Act, 42 U.S.C. § 1996; See Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450(a) (stating the U.S. policy towards Indian self-determination in education). …Open this footnote Close Accordingly, sacred lands were returned to tribes, Indian religious practices were decriminalized, and mechanisms were furthered that allowed tribes greater governmental authority over programs that had historically been entirely within the purview of the federal government. 73Open this footnote Close this footnote 73 See supra note 72. …Open this footnote Close

A watershed moment came in 1978, when Congress passed the American Indian Religious Freedom Act (AIRFA). 74Open this footnote Close this footnote 74 42 U.S.C. § 1996. …Open this footnote Close AIRFA’s passage illuminated a critical irony: in a country founded on principles of religious freedom, Native people had experienced hundreds of years of oppression, punishment, and even genocide for practicing their own religions. 75Open this footnote Close this footnote 75 See, e.g., Dept. of the Interior, Off. of Indian Affairs, Rules Governing the Court of Indian Offenses (Mar. 30, 1883). …Open this footnote Close With passage of AIRFA, for the first time in American history, Native people were (ostensibly) afforded the same legal rights to religious freedom as other Americans. 76Open this footnote Close this footnote 76 Sadly, we would soon learn this was not actually the case. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441-42 (1988) (the First Amendment did not prevent the destruction of a sacred site and, therefore, failed to offer legal protection for the religious freedom of Native people). …Open this footnote Close AIRFA was seen as an important victory, though it ultimately became clear that it was largely symbolic. 77Open this footnote Close this footnote 77 Martin Nie, The Use of Co-Management and Protected Land-Use Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands, 48 Nat. Resources J. 585, 599 (2008) (“Though symbolically important, this policy statement is mostly hollow and largely unenforceable.”). …Open this footnote Close The statute functioned essentially as a policy statement, failing to either legally bind the United States to respect Indian religious freedom or to put in place a private right of action to enshrine and secure rights moving forward. 78Open this footnote Close this footnote 78 Id. …Open this footnote Close

And, despite AIRFA, legal restrictions remained on many Native religious practices. For example, numerous state laws criminalized the possession of peyote, the primary sacrament of Indigenous practitioners of the traditional Peyote Religion, as well as adherents of the Native American Church. 79Open this footnote Close this footnote 79 In 1965, Congress listed peyote as a Schedule I hallucinogen on the list of controlled substances under the Controlled Substances Act. 21 U.S.C. § 812(c). State laws prohibiting and regulating peyote possession date back to the 1920s. Thomas Constantine Maroukis, Peyote and the Yankton Sioux: The Life and Times of Sam Necklace 181 (2004); see also Ann Beeson, Dances with Justice: Peyotism in the Courts, 41 Emory L. J. 1121, 1134-35 (1992) (writing that, in addition to combining features of various Native American traditions, the new religions borrowed many elements from Christianity; in fact, the Christian influence differentiates the “modern” peyote ceremony from rituals practiced in pre-contact times by tribes in Mexico.”). …Open this footnote Close It wasn’t until 1970 that Congress enacted legislation to shield practitioners of the peyote religion from criminal prosecution, specifically articulating protections for Native American Church practitioners. 80Open this footnote Close this footnote 80 .H.R. Rep. No. 103-675 (1994) (discussing the Controlled Substance Act of 1970). The Bureau of Narcotics and Dangerous Drugs (DEA’s predecessor) published regulations to implement the CSA in 1971, and these regulations included the exemption now contained in 21 C.F.R. § 1307.31. …Open this footnote Close

Other disputes continued to arise around Native religious practices, which often require access to sacred sites, as well as natural and cultural products necessary to carry out ceremonies and rites of passage rituals, such as eagle feathers. 81Open this footnote Close this footnote 81 See Carpenter et al., supra note 2, at, 1046-66. …Open this footnote Close Obtaining eagle feathers for Native people has been an issue of significant concern for decades. Eagles are revered in many Native American cultures and are central to ceremonial practices, 82Open this footnote Close this footnote 82 See Angelique Eaglewoman, The Importance of Eagle Feathers, YouTube (July 19, 2010), https://perma.cc/‌HRD3-HT9Q. …Open this footnote Close which are essential for the perpetuation and evolution of Indigenous culture. Having an eagle feather bestowed upon you is a great honor, and, in many tribes, feathers are a necessary feature of Indigenous regalia, ceremony, and spirituality. 83Open this footnote Close this footnote 83 Id. …Open this footnote Close But, because both the bald and golden eagles are highly coveted as symbols of American freedom as well, access to eagle feathers is severely restricted at the federal level. 84Open this footnote Close this footnote 84 The Bald and Golden Eagle Protection Act, enacted in 1940, and amended several times since, prohibits anyone, without a permit issued by the Secretary of the Interior, from “taking” bald or golden eagles, including their parts (including feathers), nests, or eggs. 16 U.S.C. §§ 668-668d. …Open this footnote Close For decades, federal laws uniformly prohibited the possession of eagle feathers, even for reservation Indians with guaranteed treaty rights. 85Open this footnote Close this footnote 85 See, e.g., United States v. Dion, 476 U.S. 734, 736 (1986). …Open this footnote Close Thus, to protect the sacramental use of eagle feathers for ceremonial purposes, for regalia, and more, Congress amended the Bald and Golden Eagle Protection Act in 1962. The Act guarantees the right of tribal members to possess eagle feathers for religious purposes, exempting them from criminal possession laws. 86Open this footnote Close this footnote 86 16 U.S.C. § 668a. However, because the process of procurement is lengthy and bureaucratic, some tribes, like my own, have developed their own Eagle Aviaries to find workarounds to this problem. See Aviary, Potawatomi Heritage, https://perma.cc/‌M6VE-JASW (archived May 25, 2025). …Open this footnote Close

Perhaps most notably, after decades of evidence of the deprivation of the human right to protect and care for their ancestors and associated funerary objects and cultural patrimony, 87Open this footnote Close this footnote 87 Trope & Echo-Hawk, supra note 52 at 126. …Open this footnote Close Congress finally passed the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990. 88Open this footnote Close this footnote 88 Native American Graves Protection and Repatriation Act (NAGPRA), Pub.L. No. 101-601, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C. §§ 3001-13). …Open this footnote Close The Act requires, among other things, that institutions receiving federal funding produce inventories of Native remains and cultural objects, consult with tribes, and work toward repatriation. 89Open this footnote Close this footnote 89 Id. …Open this footnote Close Though the initial Act had many loopholes and inadequacies that led to gross inaction (and, in some cases, unethical behavior) by institutions, 90Open this footnote Close this footnote 90 Mary Hudetz & Graham Lee Brewer, A Top UC Berkeley Professor Taught with Remains that May Include Dozens of Native Americans, ProPublica (Mar. 5, 2023, 8:00 AM), https://perma.cc/‌2XAR-G42L. …Open this footnote Close new regulations were promulgated in 2010 that helped to advance NAGPRA’s aims. 91Open this footnote Close this footnote 91 75 C.F.R. § 12378 (2010). …Open this footnote Close The experiences of tribes have varied widely since then, dependent in large part on the receptiveness of the relevant institution, 92Open this footnote Close this footnote 92 See, e.g., The Repatriation Project: The Delayed Return of Native Americans, ProPublica, https://perma.cc/‌2KQD-DPYP (archived May 25, 2025). …Open this footnote Close but even hold-out institutions now seem to be consulting actively with tribes to ensure repatriation of NAGPRA-eligible remains and materials. 93Open this footnote Close this footnote 93 See, e.g., Addressing the Woodbury Collection, Peabody Museum of Archaeology of Ethnology, (“The Peabody Museum is fully committed to the return of hair back to families and Native Nations.”), https://perma.cc/‌C9Y3-4354 (archived May 25, 2025). …Open this footnote Close

As this Part has detailed, after hundreds of years of carrying out polices designed to destroy Native culture writ large, the United States finally began to change course half a century ago. These laws are truly remedial in nature and constitute a minimal effort to place Native people and Native cultural and religious practice on the same footing as those rights enjoyed by other Americans. Recognizing that yet more can be done, even more meaningful—if incremental—changes have taken place in the last several years. That is the subject of the subsequent Part II.

II. Recent Changes in Indigenous Peoples’ Rights to Culture in the United States

There has been significant movement in laws and policies designed to protect the cultures and religions of Indigenous Peoples in the last several years alone. In my own work, I have undertaken to document how tribes themselves have and continue to develop tribal laws to protect their tangible and intangible cultural property, as well articulate broad rights to data sovereignty. 94Open this footnote Close this footnote 94 Riley, supra note 2, at 122-15; see also Rebecca Tsosie, Tribal Data Governance and Informational Privacy: Constructing “Indigenous Data Sovereignty”, 80 Mont. L. Rev. 229, 266 (2019). …Open this footnote Close At the international level, the United Nations World Intellectual Property Organization has finally—after two decades in draft form—adopted a treaty for the protection of Indigenous Peoples’ Genetic Resources and Associated Traditional Knowledge, 95Open this footnote Close this footnote 95 WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, World Intellectual Property Organization (May 24, 2024),https://perma.cc/‌6NQK-KV2K. …Open this footnote Close and further treaties are in the negotiation stage. 96Open this footnote Close this footnote 96 Intergovernmental Committee, World Intellectual Property Organization, https://perma.cc/‌ZTS9-MT6Z (archived May 25, 2025). …Open this footnote Close

And there have been important changes in laws and policies at the federal level as well. This Part briefly discusses the most recent changes, focusing specifically on the Safeguard Tribal Objects of Patrimony (STOP) Act of 2021 97Open this footnote Close this footnote 97 Pub. L. No. 117-258, 136 Stat. 2372 (codified at 25 U.S.C. § 3071 (2021)). …Open this footnote Close and the Department of Interior’s new Native American Graves Protection and Repatriation (NAGPRA) Act of 1990 regulations. 98Open this footnote Close this footnote 98 88 Fed. Reg. 86452 (Dec. 13, 2023) (to be codified at 43 C.F.R. pt. 10); see Office of Communications, Interior Department, supra note 13. …Open this footnote Close

A. The Safeguarding Tribal Objects of Patrimony Act (2021) 

More than a decade ago, news outlets across the globe reported on a high-profile case regarding the impending sale of sacred Hopi Katsina at an auction house in Paris, France. 99Open this footnote Close this footnote 99 See, e.g., Tom Mashberg, Hopis Try to Stop Paris Sale of Artifacts, N.Y. Times (Apr. 3, 2013) (describing the Hopi’s request of federal officials to intervene in an auction of Katsinam in Paris in 2013), https://perma.cc/‌8DE9-NEX7. Katsinas are sacred objects for the Hopi people, and the Hopi refer to them as “friends.” Krishnadev Calamur, Mystery Bidder at French Auction Plans to Return Sacred Hopi Items, NPR (Dec. 11, 2013, 1:29 PM), https://perma.cc/‌9CRT-7GDN. …Open this footnote Close Despite global outcry, Hopi advocacy and attempted intervention, and support from the US State Department, the sale moved forward. 100Open this footnote Close this footnote 100 Id. …Open this footnote Close At the time, scholars and others queried whether NAGPRA could be employed to stop the sale and force repatriation of the ceremonial items to the Hopi. But NAGPRA does not apply to items held in private collections, nor does it have the authority to limit the sale of such items outside the United States. 101Open this footnote Close this footnote 101 Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C. §§ 3001–3013); Mike Boehm, Sacred Hopi Tribal Masks are Again Sold at Auction in Paris, L.A. Times (June 28, 2014, 10:00 AM) (noting that NAGPRA does not apply to private collections or those sold in France), https://perma.cc/‌5RPF-3L9U. …Open this footnote Close

In the last several decades, tribal and ceremonial leaders have become acutely aware of the vast quantities of Indigenous Peoples’ cultural property that is held outside the United States. 102Open this footnote Close this footnote 102 .U.S. Gov’t Accountability Off., GAO-18-537, Native American Cultural Property: Additional Agency Actions Needed to Assist Tribes with Repatriating Items from Overseas Auctions 5-6 (2018), https://perma.cc/‌8JUB-NRHV. …Open this footnote Close Many tribes had sacred cultural items removed from their reservations—predominantly in the colonial period and, in many cases, due to theft or duress— that are now in museums or are circulating in markets overseas. One of the most prominent examples is that of the Acoma Pueblo and its attempts to reclaim its sacred Acoma Shield, an effort that was ultimately successful. 103Open this footnote Close this footnote 103 See Pueblo of Acoma Testimony for the House Indigenous Peoples of the United States Subcommittee Legislative Hearing on H.R. 2930, Natural Resources Committee Democrats (May 20, 2021) (testimony of Gov. Brian D. Vallo, Pueblo of Acoma, explaining the Pueblo’s fight for return of the Acoma Shield after being stolen from its caretaker in the 1970s), https://perma.cc/‌ZR72-QV3P; Jonathan Sims, The Safeguard Tribal Objects of Patrimony (STOP) Act Has NM Roots, The Paper (Dec. 5, 2022, 11:31 AM),https://perma.cc/‌J3AP-M49B. For a detailed account of the return of the Acoma Shield, see Lauren van Schilfgaarde, American Cultural Heritage’s Embrace of Tribal Cultural Heritage, 33 Kans. J. L. & Pub. Pol’y 275, 285-90 (2024). …Open this footnote Close Like the situation with the Hopi Katsina, NAGPRA was inapplicable to the case. 104Open this footnote Close this footnote 104 See van Schilfgaarde, supra note 103, at 286. …Open this footnote Close

In light of the limitations of NAGPRA, advocates lobbied for the passage of a law that could potentially assist Indian tribes in recovering—or at least protect from export—sacred cultural items. After much debate, Congress finally passed the Safeguard Tribal Objects of Patrimony (STOP) Act in 2021. The Act’s main features are that it sets forth policy to facilitate international repatriation and, most significantly, creates a legal framework designed to prevent further international exportation of sacred tribal cultural items. 105Open this footnote Close this footnote 105 Safeguard Tribal Objects of Patrimony (STOP) Act of 2021, 25 U.S.C § 3071. …Open this footnote Close This makes the STOP Act one of the most significant pieces of Indigenous cultural rights legislation in recent years.

The Act relies on existing prohibitions on trafficking in cultural items and archaeological resources—as defined and previously set forth in NAGPRA and the Archeological Resources Protection Act, respectively—to stop the export of Indigenous cultural items. 106Open this footnote Close this footnote 106 Compare id. § 3073(a)(1), with 88 Fed. Reg. 86452 (Dec. 13, 2023) (to be codified at 43 C.F.R. pt. 10), and Archeological Resources Protection Act, 16 U.S.C. § 470aa (b). …Open this footnote Close If an item cannot be legally “trafficked” under existing federal law, it is barred from being exported under the STOP Act. 107Open this footnote Close this footnote 107 25 U.S.C § 3071. …Open this footnote Close Items that do not fall under an existing federal prohibition may still be exported as long as the exporter successfully receives an “export certification,” 108Open this footnote Close this footnote 108 Id. at § 3073(b). …Open this footnote Close which can only be obtained from the Department of Interior. No such certification can be issued without proper consultation with the relevant Indian tribes. 109Open this footnote Close this footnote 109 Id. at § 3073(b)(3)(D). …Open this footnote Close

The certification requirement—in consultation with Indian tribes—is one of the STOP Act’s most salient features. It is one of the places where federal law is beginning to incorporate and take tribal law and Indigenous values seriously. Whether an item is sacred, collectively owned, alienable, and so forth is a question that can only be answered in reference to a tribe’s own law, regardless of whether the law is written or is transmitted orally. 110Open this footnote Close this footnote 110 See, e.g., Angela R. Riley, ‘Straight Stealing’: Towards an Indigenous System of Cultural Property Protection, 80 Wash. L. Rev. 69, 97-98 (2005) (exploring the possible benefits of codifying tribal cultural property law). …Open this footnote Close In this respect, the STOP Act takes a remarkable step in demonstrating greater respect for Indigenous knowledge and advances Indigenous Peoples’ rights to their own culture by allowing critical decisions to be made within the context of tribal law and Indigenous values. 111Open this footnote Close this footnote 111 Van Schilfgaarde, supra note 103, at 288 (discussing the STOP Act and how it protects Indigenous Peoples’ cultural property by requiring an export certificate be issued only after consultation with tribes about what can permissibly be exported). …Open this footnote Close

B. 2023 NAGPRA Regulations

NAGPRA is widely thought of as the gold standard of repatriation laws. To my knowledge, it’s the only law of its kind in the world, and—despite limitations—it has provided truly unprecedented access to justice for Indigenous communities. This landmark piece of human rights legislation was passed in 1990 after years of tireless advocacy by giants in the field, like Walter Echo-Hawk and others. 112Open this footnote Close this footnote 112 See generally Trope & Echo-Hawk, supra note 52, at 126 (setting forth the events leading up to and the legislative history of NAGPRA). …Open this footnote Close Despite its clear mandate, many museums and institutions with NAGPRA-eligible collections have failed to implement the law, even though they’ve had decades to do so. There are several well-known offenders. The University of California, Berkeley, for example, still holds more than 9,000 sets of NAGPRA-eligible human remains in its collections. 113Open this footnote Close this footnote 113 Berkeley Talks Transcript: Linda Rugg on Native American Repatriation at UC Berkeley, Univ. of Cal., Berkeley (July 2, 2021), https://perma.cc/‌826H-YJ5M. …Open this footnote Close The Peabody at Harvard University maintains the Native remains of more than 7,000 ancestors and still possesses the hair of more than 700 children that was cut from their heads by anthropologist, George Edward Woodbury, in the 1930’s when they were forcibly held at Indian boarding schools. 114Open this footnote Close this footnote 114 About the Collection, Peabody Museum of Archaeology & Ethnology, https://perma.cc/‌X6E9-C2R7 (archived May 25, 2025); Addressing the Woodbury Collection, Peabody Museum of Archaeology & Ethnology (stating that the collection includes the hair of “approximately 700 Native American children attending U.S. boarding schools”), https://perma.cc/‌55KX-EN5X; Commitment to Return, Peabody Museum of Archaeology & Ethnology, https://perma.cc/‌EC24-T7TU (archived May 25, 2025). …Open this footnote Close And there are many others. 115Open this footnote Close this footnote 115 Mary Hudetz, New Federal Rules Aim to Speed Repatriations of Native remains and Burial Items, ProPublica (Dec. 8, 2023), https://perma.cc/‌Q3L6-EQ8E. …Open this footnote Close As of today, there are still well over 100,000 sets of NAGPRA-eligible remains that have yet to be repatriated. 116Open this footnote Close this footnote 116 .Native Am. Graves Prot. & Repatriation Rev. Comm., Annual Report to Congress: 2020-2021 at 13 (2020); see also van Schilfgaarde, supra note 103 (discussing the number of Native human remains that have yet to be repatriated under NAGPRA). …Open this footnote Close

After decades of stagnation, the US Department of the Interior (DOI) promulgated regulations in late 2023 to compel the swift repatriation of NAGPRA-eligible remains and items of cultural patrimony. 117Open this footnote Close this footnote 117 Office of Communications, Interior Department, supra note 13. …Open this footnote Close The regulations were far-reaching and ambitious. One pivotal change was to require that deference be given “to the Indigenous Knowledge of lineal descendants, Tribes and NHOs”. 118Open this footnote Close this footnote 118 Id. …Open this footnote Close As with changes seen with the STOP Act, this modification to NAGPRA’s implementation calls for museums and institutions to take Indigenous Knowledge and Indigenous values seriously, and, in fact, to defer to it in decision-making. 119Open this footnote Close this footnote 119 Id. …Open this footnote Close This provision, in itself, comprises a radical shift in NAGPRA’s implementation, as there has long been a refrain by scientists and anthropologists that Indigenous ways of knowing should be minimized in repatriation decisions because they are anti-science and anti-research. 120Open this footnote Close this footnote 120 See, e.g., White v. Univ. of Cal., (9th Cir. 2014) (regarding a lawsuit by University of California scientists opposing repatriation). From my nearly fifteen-year experience serving on and chairing the Repatriation Committee at UCLA, the kinds of conflicts that led to this lawsuit are not anomalous. …Open this footnote Close

The regulations made additional significant changes to NAGPRA, including omitting the category of “culturally unidentifiable” remains, taking tribal oral history seriously as a line of evidence, creating strict timelines for institutions to be responsive to claims, and requiring consultation with tribes. 121Open this footnote Close this footnote 121 43 C.F.R. pt. 10. …Open this footnote Close The regulations require limits on scientific research on remains if a tribe requests it. And, critically, the regulations implement language from the UN Declaration on the Rights of Indigenous Peoples, requiring that institutions seek and obtain “free, prior, and informed consent” from tribes in NAGPRA related decisions. 122Open this footnote Close this footnote 122 van Schilfgaarde, supra note 103, at 285-90.; Hudetz, supra note 115. …Open this footnote Close

As former Secretary of the Interior Deb Haaland stated when speaking of the Act: “Finalizing these changes is an important part of laying the groundwork for the healing of our people.” 123Open this footnote Close this footnote 123 Office of Communications, Interior Department, supra note 13. …Open this footnote Close The DOI regulations have been touted as “strengthen[ing] the authority and role of Indigenous communities in the repatriation process” with an aim of “accelerating the repatriation process.” 124Open this footnote Close this footnote 124 Id. …Open this footnote Close

The new regulations inspired strong reactions in the museum and Native communities. Some museums shuttered exhibits in the wake of the regulations. 125Open this footnote Close this footnote 125 Statement on New NAGPRA Regulations, Am. Museum of Nat. Hist. (Jan. 26, 2024), https://perma.cc/‌85DT-GE9B. …Open this footnote Close Others asserted that the new timelines were unrealistic and that adequate funds were not available to achieve the desired results. 126Open this footnote Close this footnote 126 Gabriella Angeleti, US Museums Cover Native American Displays as Revised Federal Regulations Take Effect, The Art Newspaper (Jan 29, 2024),https://perma.cc/‌8G3R-G9UY. …Open this footnote Close But many tribes and Native advocates praised the changes as getting NAGPRA closer to fulfilling the human rights aims it was passed to achieve. 127Open this footnote Close this footnote 127 Native American Graves Protection and Repatriation Act, 88 Fed. Reg. 86452 (Dec. 13, 2023) (to be codified at 43 C.F.R. pt. 10) (calling the harms “human rights violations”); see Jenna Kunze, New York Museum Unveils Repatriation Overhaul After Ethical Awakening, Native News Online (Oct. 17, 2023), https://perma.cc/‌SC35-R9KH. …Open this footnote Close The hope is that the new regulations will prompt swift action by museums and academic institutions, some of which have delayed responding to tribes for decades. 128Open this footnote Close this footnote 128 Id. …Open this footnote Close

Conclusion

Due to the recency of these changes in the laws, their impacts on Indigenous Peoples’ rights to culture remain uncertain. What does seem possible, if not likely, however, is that disputes around the scope of Indigenous cultural rights will continue to arise. The shape that such cases might take is varied and complex. After all, there is no single body of American law that governs Indigenous Peoples’ rights to culture. Sacred sites conflicts, for example, largely arise under the First Amendment and the Religious Freedom Restoration Act, among others. 129Open this footnote Close this footnote 129 See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008). …Open this footnote Close The opposition to the designation of national monuments is rooted in questions regarding the scope of presidential authority under the Antiquities Act. 130Open this footnote Close this footnote 130 Pub. L. No. 59-209, 34 Stat. 225 (codified as amended at 54 U.S.C. §§ 320301–320303 (1906)). …Open this footnote Close And, when challenges have arisen around NAGPRA or Native-specific peyote protections, for example, they are often framed as potential equal protection violations. 131Open this footnote Close this footnote 131 See, e.g., Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1214 (5th Cir. 1991) (holding that federal regulations exempting Native American Church members from statutes prohibiting peyote possession did not violate equal protection). …Open this footnote Close

Each cultural rights claim raised is governed by the relevant subject matter doctrine, as the United States does not embed protections for rights to culture per se within American law. 132Open this footnote Close this footnote 132 Protections for culture appear more commonly in the UN system and elsewhere. See, e.g., The United Nations Educational, Scientific and Cultural Organization (UNESCO), https://perma.cc/‌7G96-6G2S (archived May 5, 2025). UNESCO is a specialized agency of the United Nations with the aim of promoting culture (among others). …Open this footnote Close The one current relevant case regarding cultural rights that could potentially come before the Supreme Court in short order is Apache Stronghold v. United States. 133Open this footnote Close this footnote 133 Petition for Writ of Certiorari, Apache Stronghold v. United States (2024) (No. 21-15295), https://perma.cc/‌5WA3-Q88X (archived May 25, 2025). …Open this footnote Close This case centers on the question of whether the destruction of the Apache’s sacred site at Oak Flat violates their right to free exercise of religion under either the First Amendment or the Religious Freedom Restoration Act. 134Open this footnote Close this footnote 134 Id. …Open this footnote Close Though this case directly implicates the Apache’s cultural rights—at least in my capacious framing as laid out in this Essay—“cultural rights” per se will not be expressly discussed or come into play, even if the Court grants certiorari.

Given this complex legal tapestry, it’s impossible to say precisely where the Supreme Court would come out on any particular issue regarding Indigenous Peoples’ rights to culture, or whether it would even view prominent disputes through that lens. While laws enacted in the several decades (including the most recent changes documented above) seem to indicate an increased attentiveness to protecting Indigenous Peoples’ right to culture (broadly speaking), such protections are unlikely to proceed unchallenged in the courts. The ways in which Indigenous Peoples’ cultural protections are framed and the constitutional authority under which they are advanced will be vitally important to the question of whether they will survive legal challenges.

The Supreme Court’s most recent Indian law cases give some hint as to at least a few issues the Court is grappling with in the field. 135Open this footnote Close this footnote 135 Though there is not space in this Essay for a full examination of the issue, there is also concern that some members of the Court are suspicious of Indian-specific legislation because of equal protection concerns. See, e.g., Haaland v. Brackeen, 599 U.S. 255, 333-34 (Kavanaugh, J., concurring) (agreeing that the Plaintiffs lacked standing to bring a claim under the Equal Protection Clause while noting a belief that “the equal protection issue is serious”); W. Flagler Assocs., Ltd. v. Haaland, 144 S. Ct. 10 (2023) (in a statement respecting the denial of a stay of a Florida law that allowed the Seminole Tribe to conduct off-reservation mobile sports betting, Justice Kavanaugh stated, “[t]o the extent that [the law] authorizes the Seminole Tribe—and only the Seminole Tribe—to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues”). …Open this footnote Close For example, one focus in recent cases has been on the origin and scope of Congress’ plenary power over Indians and tribes. When addressing this issue, the justices seem to have far-ranging and diverse views on the precise answer to the question. 136Open this footnote Close this footnote 136 See, e.g., Brackeen, 599 U.S. at 273-74 (holding that “Congress’s authority to regulate Indians must derive from the Constitution, not the atmosphere,” and tracing that authority to the Indian Commerce Clause, the Treaty Clause, and “principles inherent in the Constitution’s structure”); id. at 308 (Gorsuch, J., concurring) (joining the majority in full, while noting “the Indian Commerce Clause gives Congress a robust (but not plenary) power to regulate the ways in which non-Indians may interact with Indians”). …Open this footnote Close If the Court continues to assert that Indian law is punctuated by the overarching plenary power of Congress, we might anticipate that constitutional challenges that arise to Indian-specific legislation regarding rights to culture — whether it be protections for sacramental peyote use, eagle feather possession, repatriation, or otherwise — may fall squarely within what the Court views as the clear authority of Congress to legislate in Indian affairs, authorized by the constitution’s Indian Commerce Clause. 137Open this footnote Close this footnote 137 U.S. Const. art. 1, § 8, cl. 3. …Open this footnote Close

But not all members of the Court share such a view of plenary power. In fact, some members of the Court have even gone so far as to contend that there is no constitutional support for Congress’ plenary power over Indian affairs at all. 138Open this footnote Close this footnote 138 See, e.g., Arizona v. Navajo Nation, 599 U.S. 555, 573 (2023) (Thomas, J., concurring) (arguing that the trust relationship which has been used to “feed into the so-called plenary power that Congress supposedly enjoys over Indian affairs . . . appears to lack any real support in our constitutional system”); Brackeen, 599 U.S. at 327-28 (Gorsuch, J,. concurring) (asserting the Court’s plenary power jurisprudence is an “atextual and ahistorical” departure from the Constitution’s original meaning). …Open this footnote Close And relatedly, there are active debates on the Court regarding the scope of the federal government’s trust responsibility to enact legislation or otherwise act to advance the well-being of Indian tribes. 139Open this footnote Close this footnote 139 See generally Matthew L. Fletcher, The Dark Matter of Federal Indian Law: The Duty of Protection, 75 Me. L. Rev. 305 (2023). …Open this footnote Close While some members of the Court see the trust responsibility as requiring the United States to act as a fiduciary to tribes, 140Open this footnote Close this footnote 140 See, e.g., Navajo Nation, 599 U.S. at 586 (Gorsuch, J., dissenting) (finding that the United States has assumed a fiduciary duty to tribes through Congressional acts and treaties that can establish a breach-of-trust claim). …Open this footnote Close others construe the duty incredibly narrowly. 141Open this footnote Close this footnote 141 See, e.g., id. at 563 (narrowly construing the trust responsibility to require tribes to, “establish, among other things, that the text of a treaty, statute, or regulation imposed certain duties on the United States” in order to bring a breach of trust claim); id. at 570-74 (Thomas, J., concurring) (questioning the existence of any trust responsibility outside of “the trust that Indians have placed in the Federal Government” and asserting that the prior decisions’ references to the responsibility were “mere dicta”). …Open this footnote Close Given that many of the cultural rights that currently exist for Native people—e.g., NAGPRA, IACA, STOP Act, and others—are deployed through Congressional acts and justified by both the constitution and the federal government’s trust responsibility to tribes, the way the Court would approach legal challenges to these laws is of significant import.

For now, tribes are drawing on their own laws, customs, and traditions to devise their own future as Native Nations. Maintaining and advancing Native culture is an essential component of what it means to be a sovereign, self-governing people. Rights to culture can and are being advanced through tribal, federal, and international law, hopefully with all of these changes advancing a vision of a better, brighter day for the world’s Indigenous Peoples.

* Carole Goldberg Endowed Professor of Native Law and American Indian Studies, UCLA School of Law; Director, Native Nations Law and Policy Center; Chief Justice, Citizen Potawatomi Nation Supreme Court; and Special Advisor to the Chancellor on Native American and Indigenous Affairs. The author would like to thank Luke Colvard for outstanding research assistance and the Stanford Law Review for engaging on this important topic. Chi-miigwetch.