Control of Cultural Property as Human Rights Law

Yale L J, 2008

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of "peoples" rather than "persons," arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples' cultural property claims in terms of nonowners' fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms ofpeoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.

UCLA L. Rev., 2005

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of the owner trump all other interests and values. As scholars have argued, however, the ownership model represents a view of property law that is neither descriptively accurate nor normatively attractive. In theory and practice, property law also recognizes the rights of nonowners in furtherance of human values and social relations. Accordingly, this Article contends that, even as nonowners, Indians may have enforceable property rights to use, and maintain the physical integrity of, sacred sites. Examining sacred sites problems through common law, federal Indian law, public lands law, and human rights law, the Article identifies and analyzes property rights arguments that may be available to Indian litigants even where the government is the undisputed owner of the land. While this approach will not secure Indian religious freedoms in every case, the Article concludes that Indian nations should consider property rights arguments as part of a multipronged legal strategy in sacred sites cases.

Indiana Law Review, 2001

God created this Indian country and it was like He spread out a big blanket. He put the Indians on it. They were created here in this country, truly and honestly, and that was the time this river started to run. Then God created fish in this river and put deer in these mountains and made laws through which has come the increase of fish and game. Then the Creator gave us Indians life; we awakened and as soon as we saw the game and the fish we knew they were made for us I was not brought from a foreign country and did not come here. I was put here by the Creator. 1 INTRODUCTION Chief Meninock's words describe a world in which the Native people, the land and its resources interact under a Divine plan created for a particular place on earth. The people exist under the same set of laws that governs all other living things, which results in order, balance, and abundance. Contemporary American society, of course, is governed by a system of man-made laws that has created an imbalance of resources, whether measured in tangible ways (e.g., land) or intangible ways (e.g. equality of opportunity). This Symposium addresses that problem by evaluating the continuing inequalities in wealth and property that exist in America. "America" symbolizes many things, among which are a geographical territory, a robust pluralism that highlights values of tolerance and respect for diversity, and a constitutional democracy that has become one ofthe major world powers. Each of these aspects informs the dialogue on property, wealth and inequality. But for the indigenous peoples ofthis land, "America" has a different meaning. Acoma poet Simon Ortiz says that, "[NJative culture is at the heart of everything that is America." 2 Indigenous identity is formed by the intersection

2000

SSRN Electronic Journal, 2007

This Article proposes a theory of "real property and peoplehood" in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unwilling to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the United States took from them. This is especially true with regard to Indian "sacred sites." These are features of the natural landscape holding religious and cultural significance for American Indian tribes. The Supreme Court has held that destruction of sacred sites located on the public lands does not impinge on individual religious belief and falls within the government's powers as a landowner. This is true even if the sacred site is unique and essential to a particular religious practice. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands-such as natural resource development and tourism-that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we do not yet have a legal theory justifying such a position. My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially,

2009

There was an exception for Indian members of the Native American Church because the use of peyote was central to, and the cornerstone of, religious practices of the Native American Church. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court ruled that a state could deny unemployment benefits to an Indian who was fired for using peyote as part of his traditional worship service. Id. at 890. The American Indian Religious Freedom Act, 42 U.S.C. § 1996a(b)(1) (2006), discussed infra pt. m(C), was amended in 1994 to permit Indians to use peyote in their religious ceremonies.

Forum journal, 2018

In a number of contexts one comes across the suggestion that cultures are collective owners of cultural property, such as particularly significant works of art. Indigenous peoples are often held to be collective owners of cultural property, but they are not the only ones. Icelandic culture is said to have a claim on the Flatejarbók and Greek culture is held to own the Parthenon Marbles. In this paper I investigate the conditions under which a culture is the rightful owner of cultural property. I argue against the claims that cultures inherit cultural property. I also argue that a culture's claim to own cultural property is seldom, if ever, founded on either practices employed in the culture or collective production of cultural property. I maintain, however, that the very value of cultural property for some culture can, in some instances, provide the basis for the culture's claim on the property.

2019

2020

Persistent gaps in American intellectual property law and federal cultural resource legislation leave intangible Native American cultural resources almost wholly unprotected against unauthorized commercial appropriation. The results of this oversight are clear: Cultural appropriation remains both profitable and legally permissible, and Native communities have little remedy against outside appropriators. Inspired by a series of interviews conducted by the author with Alaska Native artists and allies, this article proposes a partial, state-based solution to the problem of unauthorized commercialization: the right of publicity. Building from previous scholarship on the potential and pitfalls of a common law, right-of-publicity shield to cultural appropriation, it focuses on the relatively-unexplored option of a statutory right, which can be passed by individual states and tailored to grant tribes a communal remedy for unauthorized commercialization. A well-crafted right-ofpublicity statute would provide a valuable opportunity for state courts to recognize and defer to tribal law and custom. Most importantly, the right of publicity could provide legal remedy to Native communities where no remedy currently exists and meet an urgent need for protection against further exploitation of Native cultural heritage.