A central, and highly complex, set of national and international legal and ethical concerns for archaeology that has developed since the 1950s derives from the linkage of some archaeological sites, artifacts, and the knowledge related to them, to self-defined peoples from whose pasts and/or traditional cultures they are said to derive. These asserted linkages have come to legally structure how archaeology is, or is not, conducted in numerous countries.
‘Self-defined’ peoples is used here as an inclusive category, since it refers to peoples, nations, or communities that may, or may not, have national or international legal recognition within nation states or international bodies, but whose members regard themselves as a sociopolitical or culturally distinct group. ‘Indigenous peoples’, ‘indigenous nations’, ‘descendant communities’, and ‘Fourth World’ are also terms variously used by, or applied to, such groups. All such groups may assert rights to archaeological resources and knowledge which they conceive to be part of their cultural heritage.
Self-defined peoples’ claims to archaeological knowledge and artifacts are best understood within the larger framework of the general indigenous peoples’ rights movement that culminated in the formulation of the International Covenant on the Rights of Indigenous Nations in 1994 by the United Nations and numerous NGOs. The covenant and related instruments distinguish between ‘‘nations’’ and (nation-) ‘‘states’’ of the First, Second, and Third Worlds. For present purposes, the major points are:
Indigenous nations are peoples which have the right to full and effective enjoyment of all human rights and fundamental freedoms recognized in the Charter of the United Nations and in international human rights law.... Indigenous nations have the right of self-determination, in accordance with international law, and by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development without external interference.
Indigenous nations have the right to practice their cultural traditions and evolve culture in relation to lands and territories without interference. This includes the right to maintain, protect, and develop the past, present, and future manifestations of their culture, such as archaeological and historical sites and structures, artifacts, designs, ceremonies, technologies, and visual and performing arts and literature, as well as the right to the restitution of cultural, religious, and spiritual property taken without their free and informed consent or in violation of their laws.
Indigenous peoples have the right to manifest, practice, and teach spiritual and religious traditions, customs, and ceremonies; the right to maintain, protect, and have access in privacy to religious and cultural sites; the right to the use and control of ceremonial objects; and the right to the repatriation of human remains. Nations and States shall be encouraged to take effective measures to preserve respect and protect the sacred places of each indigenous nation.
Self-defined indigenous nations assert that the public international laws, and derivative regulations of the ‘State system’, that is the nation-states which comprise the United Nations, have been undermined by the private international law and rule-making of multinational corporations, thus weakening the state system. The indigenous nations argue that covenants and other instruments developed by them have equal standing in international law with the instruments of the multinational corporations and must be taken seriously by the ‘‘states’’. Increasingly, since the 1960s, both national and public international heritage laws have been written in support of the claims of self-defined groups to the cultural heritage of the nation-states in which they reside, or from which they derive.
World History
