Australian Aboriginal and Native American Cultural Heritage Protection

Australian Aboriginal and Native American Cultural Heritage Protection

Brieahn J. DeMeo
American University


Within the context of Australian policy Aboriginal peoples utilize copyright law as a major tool for protecting cultural heritage.  Aboriginal arts’ place in the modern art market subjects it to more opportunities for misuse and misappropriation.  Copyright, however, could not be utilized without the cultural recognition established through heritage laws in the country.  In the case of United States policy regarding indigenous native peoples, the legislation most often utilized are the heritage laws.  Native American material culture does not reside within modern art market in the same way as contemporary Aboriginal art does.  They are kept within native communities or placed in museums for educational purposes.  Contemporary Native American artists do not face the same exposure as Aboriginal artists.  This is not to say that there is not the capability for misuse of Native culture, but the majority of cases deal in antiquities and traditional property.

THE LEGISLATION- United States v. Australia

In order to understand the complexities of indigenous cultural property issues, we must understand the legislation that protects heritage.  We cannot simply compare The Native American Graves and Repatriation Act with The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, as they become part of a larger body of legislation.  Rather than provide a comprehensive study on all cultural heritage legislation, a summary of the important acts regarding indigenous communities in both the United States and Australia will be provided.

It is often believed that indigenous claims to cultural appropriation are beyond the scope of the legal property framework because they deal mostly with physical objects and not intellectual property (Coleman 2005, 21).  As we compare the U.S. and Australian Policy this will become evident, it will then be necessary to incorporate copyright law into our analysis later in the paper.


We begin our overview of indigenous legislation with the United States Archaeological Resources Protection Act of 1979 (ARPA). While this was not the first antiquities act enacted, for the purposes of this paper it will suffice to begin here.  The Act established regulations regarding cultural resources obtained from site excavations within the U.S.  (Archaeological Resources Protection Act of 1979 1979).  Creating guidelines and definitions for the removal of cultural important items it strengthened governmental control over archaeological resources (Wright 2004, 133).  The purpose of the act, as stated in 16 U.S.C. §§ 2 (b), is

For the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange for information between governmental authorities”

Permits were required, for non-Native peoples, to excavate on Native lands and penalties were created for those who did not comply with legislation regarding Native property.

This Act shifted the focus of excavation on the protection and preservation of material resources in the United States.  It signaled an era of increased importance on culturally significant items and aided in developing an environment in which cultural property could be seen as more than simply pots in the ground.


The Native American Graves and Repatriation Act (NAGPRA) was a turning point in Native American cultural property legislation.  In 1987 the Smithsonian Institution created a public reporting initiative that surveyed their archival collection.  The report found that 43% of their inventories of human remains were of Native American origin (Rose, Green and Green 1996, 89).  This led to the creation of The National Museum of the American Indian and The Native American Graves and Repatriation Act. The purpose of the act is to address the issues of Native American cultural resource ownership and the appropriate handling of native human remains (DeMeo 2010, 5).  Ownership of cultural resources can be determined through lineal decent and cultural affiliation to groups or land[1].

The Committee established to oversee regulations was designed to represent a diverse body of knowledge.  Consisting of individuals recommended by Native American tribes and organizations, Native religious leaders, anthropologists, and museum officials, the committee addresses the need for incorporation of not only governmental officials but also native peoples themselves.

“This Act reflects the unique relationship between the Federal Government and Indian Tribes and Native Hawaiian organizations[2].  The Act acknowledges the government-to-government relationship between the US and Native Americans, and in so doing, establishes healthy relationships between the two.  Developing these relationships can foster continued communication between the government and native groups and the creation of new legislation.


The Australian Aboriginal Heritage Act of 1972 was created to ensure the protection and preservation of Aboriginal cultural heritage in Western Australia, and to establish a registry of these sites and objects that the act seeks to protect (Affairs, 2,3).  The act attempts to protect the cultural heritage of Australian Aboriginal peoples.  It applies to “ a) any place of importance or significance… b) any sacred, ritual, or ceremonial site… c) any place which, in the opinion of the committee, is or was associated with Aboriginal people… d) any place where objects to which this Act applies are traditionally stored (Aboriginal Heritage Act 1972, II.s.5).  As you can see there is a focus on place, protection of cultural objects lies within the protection of Aboriginal sites.  Land ownership becomes an important component to the legitimization of Indigenous rights within Australian law.  Objects that are protected must be “situated within the state” and must hold sacred/ritual/ceremonial importance or be connected with purpose of traditional cultural life (Aboriginal Heritage Act 1972, s.6).  The act also applies to objects resembling those with sacred significance in as much as they can be misinterpreted as traditional cultural objects.  The act does not apply to collections held by museums, which Invalid source specified. becomes important when dealing with issues regarding misuse of cultural property.

The act establishes a Cultural Material Committee made up of “appointed members and ex-officio members.[3]”  The act identifies these individuals as anthropologists, appointed members, a Chairman of the Committee, and appointed Director of the museum, and authorized land officer.  It is important to note the lack of emphasis on Aboriginal committtee members.  Its is explicitly stated that the appointed members “shall be selected from amongst people, whether or not of Aboriginal descent.[4]”  The purpose of the Committee is to “evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons (Aboriginal Heritage Act 1972).”  This can be problematic in establishing accurate representation of indigenous communities and their cultural heritage.  The Registrar, appointed by the minister, is in charge of all protected areas, all Aboriginal cultural material, and other places and objects that the act protects.[5]

In order to determine the importance of a place or an object, the committee must take into account existing Aboriginal customs, past and present.  A protected Aboriginal object is defined as having a) sacred, ritual, or ceremonial importance b) anthropological, archaeological, ethnographic interest  or c) outstanding aesthetic value.[6]


The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 extends the scope of legislation to the protection of all Australian Aboriginal cultural heritage including that which is located within Australian waters (Government n.d.).  This act defines Aboriginals in the same language as the Aboriginal Heritage Act 1972, heretofore called AHA, with the addition of indigenous inhabitants of the Torres Strait Islands.  The Aboriginal and Torres Strait Islander Heritage Protection Act establishes as its purpose “the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition” [7].

The Legislation allows for the Minister to enstate an emergency declaration for a site that has been nominated for preservation by or on behalf of Aboriginal groups.  Critiques of cultural heritage legislation maintain that ownership rights are often vested in the government minister rather than the community and that there is a focus on tangible culture from the past rather than living culture of the present.  This is where Australian Copyright legislation enters into the discussion (Australian Institute of Aboriginal and Torres Strait Islander Studies and the Aboriginal and Torres Strait Islander Commission 1998, 24).

Unlike the AHA the Aboriginal and Torres Strait act provides protocol for the discovery of Aboriginal remains and their proper disposal, which in most cases is the return to Aboriginal communities to which they belong[8].  Much like the AHA this Act relies heavily on Australian governmental control with only minimal indigenous input.

(complete paper available upon request for academic research purposes only0


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