Owning Geronimo but not Elmer McCurdy: The Unique Property Status of Native American Remains

This Article unifies two areas of legal scholarship that have not historically intersected. In the fields of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property. With the passage of the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”) Native American remains are classified as familial and tribal property. In Native American legal scholarship the distinction and significance of property status under NAGPRA has been overlooked. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications. At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after reconsidering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to protect their dead more effectively than any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform beyond Native American remains