Museum Rights vs. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources


The manner in which state and federal museums acquire and display collections for public viewing reflects American law and social policy relating to cultural resources and historic preservation. Since their inception, museums in the United States have had a relationship with Native Americans that has been both beneficial and antagonistic. This paper examines the legal history of that relationship. The issue presented is whether museums can effectively convey to the public a portrait of Native Americans that does not violate or offend their religious beliefs or cultural integrity. The principal focus of this article is on property rights, as other literature extensively examines applicable free exercise of religion issues.

As is true of other distinct cultural groups which make up the social fabric of the United States, Native Americans are the exclusive owners of unique traditions and values. The first amendment of the United States Constitution accords Native Americans the right to enjoy their uniqueness and to be secure in their right to be Indian. The overriding national interest in protecting this fundamental liberty was aptly described in a case which upheld the first amendment right of Navajo Indians to use peyote, a stimulant drug, in religious ceremonies of the Native American Church:

[T]he right to free religious expression embodies a precious heritage of our history. In mass society, which presses at every point toward conformity, the protection of a self-expression, however unique, of the individual and the group becomes ever more important. The varying currents of the subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights of theIndians who honestly practiced an older religion in using peyote one night at a meeting in a desert hogan near Needles, California.

Unfortunately, recognition of the fundamental liberties of Native Americans has not always characterized the historical relationship between theUnited States and Indian Tribes. Active suppression of Indian religion and culture is well-documented and has only recently been acknowledged by the federal government. Museums played a vital role in the preservation of Native American culture during crisis periods in which the federal government actively sought to assimilate the Indian into the mainstream of American society.

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