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In Defense of Property

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In Defense of Property THE AvLru LAW JORNL KRISTEN A. CARPENTER, SONIA K. KATYAL, AND ANGELA R. RILEY In Defense of Property A B STTR A C T. 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. A UT H ORR S. Kristen A. Carpenter is Associate Professor of Law, University of Denver Sturm College of Law. Sonia K. Katyal is Associate Professor of Law, Fordham School of Law. Angela R. Riley is Professor of Law, Southwestern Law School. The authors would like to thank Nestor Davidson, David Fagundes, Martin Flaherty, Matthew L.M. Fletcher, Carole Goldberg, Tracy Higgins, Neal K. Katyal, Esther Lucero, Kevin Noble Maillard, Hiroshi Motomura, Stephen Munzer, Eduardo Pefialver, Gowri Ramachandran, Kal Raustiala, Russell Robinson, Susan Scafidi, Joseph William Singer, Alex Tallchief Skibine, Madhavi Sunder, Josh Swartz, Christine Tan, Molly Van Houweling, Robert A. Williams, Jr., Thatcher Wine, and participants at the University of Colorado Property Works in Progress Symposium, the Center on Property, Citizenship, Society, and Entrepreneurship at Georgetown Law School, and faculty workshops at Michigan State Law School, University of California Hastings College of the Law, University of California Irvine School of Law, UCLA School of Law, Santa Clara Law School, Southwestern Law School, University of New Mexico School of Law, and Cornell Law School, for helpful comments. 1022 ARTICLE CONTENTS INTRODUCTION 1024 1. CONCEPTIONS OF CULTURAL PROPERTY 1030 A. An Indigenous Legacy of Cultural Property 1032 B. Critiques of Cultural Property 1038 1. AView from the Marketplace of Goods 1039 2. A View from the Cultural Commons 1041 3. AView from Cosmopolitanism 1044 II. PEOPLEHOOD AND CULTURAL STEWARDSHIP 1046 A. From Personhood to Peoplehood 1046 1. Conceptualizing Peoplehood from Personhood 1050 2. Indigenous Peoplehood and Cultural Property 1O6O B. From Ownership to Stewardship io65 1. Introducing Cultural Stewardship: Views from Indigenous, Corporate, and Environmental Theory 1o67 2. Liability Rules, Governance, and Stewardship 1079 3. Dynamic and Static Stewardship: Fungibility and Inalienability 1O83 III. INDIGENIZING CULTURAL PROPERTY io88 A. Tangible Cultural Property 1o89 B. Intangible Cultural Property 1097 C. Real Cultural Property 1112 CONCLUSION 1124 THE YALE LAW JOURNAL 118:1022 2009 INTRODUCTION There is a quiet-and somewhat ironic-revolution underway in property law today. Though property law historically has been used to legitimize the conquest of indigenous lands, indigenous groups worldwide are now employing this same body of law to lay claim to their own cultural resources. In the United States, for example, Indian tribes have sought trademark rights in tribal symbols,' the return of Indian burial and ceremonial objects from museums,2 easements in sacred sites,3 and ongoing title to aboriginal lands.4 American Indian tribes increasingly bring such claims, grounded in property law, to advance tribal sovereignty, self-determination, and cultural survival.6 Internationally, indigenous groups in places as diverse as Belize' and Australia 1. See Phil Patton, Trademark Battle over Pueblo Sign, N.Y. TIMES, Jan. 13, 2000, at Fi (discussing Zia Pueblo's request that the State of New Mexico pay the tribe $74 million for the use of the Zia sun symbol, a sacred tribal image also used on the state flag and license plates). 2. See KATHLEEN S. FINE-DARE, GRAVE INJUSTICE: THE AMERICAN INDIAN REPATRIATION MOVEMENT AND NAGPRA 91-97 (2002) (discussing the repatriation of Wampum Belts to the Six Nations and the return of Zuni War Gods to Zuni Pueblo). The case of the Wampum Belts, in particular, points to a long history of indigenous attempts to recover cultural property. See, e.g., Onondaga Nation v. Thacher, 189 U.S. 306, 309-11 (1903) (holding that federal courts lacked jurisdiction to hear a tribal appeal of a state court ruling against tribes seeking to recover from the defendant four wampum belts, to which the defendant asserted ownership by purchase but which were averred by the plaintiffs to be the property of a league of Indian tribes). 3. See United States v. Platt, 730 F. Supp. 318 (D. Ariz. 1990) (granting Zuni Pueblo a "prescriptive easement" over the lands of a private rancher and allowing religious leaders to conduct a sacred pilgrimage to Zuni heaven); Plaintiffs' Third Amended Complaint, N. Cheyenne Tribe v. Martinez, No. 03-5019 (D.S.D. May 23, 2003) (asserting easement and other property interests against development of sacred Bear Butte in South Dakota). 4. See United States v. Dann, 470 U.S. 39, 44, 50 (1985) (rejecting a tribal aboriginal title defense to the United States's trespass claim against the Western Shoshone, although leaving open claims of individual aboriginal title); Dann v. United States, Case 11.140, Inter- Am. C.H.R., Report No. 75/02, OEA/Ser.L/V/II.11 7, doc. 5 rev. 1 139 (2002) (finding that the United States had unlawfully deprived the Dann sisters of their rights, through actions that "were not sufficient to comply with contemporary international human rights norms, principles and standards that govern the determination of indigenous property interests"). 5. See, for example, Maya Indigenous Cmtys. of the Toledo Dist. v. Belize, Case 12.053, Inter-Am. C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 5-6 (2005), which affirms the existence of a system of customary communal land tenure among the Maya villages of southern Belize. A similar decision affirming Maya property rights was subsequendy issued by the Belize Supreme Court. See Aurelio Cal ex rel. Maya Vill. of Santa Cruz v. Att'y Gen. of Belize (Sup. Ct. Belize Oct. 18, 2007) (unreported), available at https ://www.law.arizona.edu/Depts/iplp/advocacy/maya-belize/documents/ClaimsNos17ia nd1720f2007.pdf. IN DEFENSE OF PROPERTY also turned to property law to challenge the expropriation of their lands, have 7 medicines, ceremonies, artwork, and natural resources. These examples are not isolated; rather, they reflect the emergence of a distinct area of law that focuses on land, traditional knowledge, and other interests often associated with the cultural heritage of indigenous groups. This body of cultural property law is unique because it traverses not only the boundaries between properties -real, personal, and intellectual- but also the boundaries between international, domestic, and tribal law. Indeed, on September 13, 2007, after twenty-five years of negotiation, the United Nations adopted the Declaration on the Rights of Indigenous Peoples,8 which contains numerous provisions explicitly recognizing the collective property rights of indigenous peoples to both tangible and intangible resources. 9 Yet just as the international community begins to reckon with protecting indigenous cultural heritage, many scholars, often from diverse disciplines, are intensely critical of the concept. In a recent New York Times column, Edward Rothstein complained that cultural property laws had engendered "a new form 6. See, e.g., Yumbulul v. Reserve Bank of Austl. (1991) 21 I.P.R. 481, available at http://www.auslii.edu.au/au/cases/cth/FCA/1991/332.html (rejecting a challenge by an Australian Aboriginal artist to a bank's reproduction on a $1o note of one of his designs of the Morning Star Pole, with the artist asserting that his right to make the Morning Star Pole was subject to the traditional norms and custodial management of the Galpu clan). 7. For one provocative survey of indigenous cultural property claims, see WINONA LADUKE, RECOVERING THE SACRED: THE POWER OF NAMING AND CLAIMING 11 (2005), which situates indigenous claims to religious sites, natural resources, funerary remains, human tissue, symbols, artwork, mascots, songs, ceremonies, and food sources in the context of indigenous struggles to "heal ...from the ravages of the past" by "recovering that which is 'sacred"' through a process that is "essential to our vitality as Indigenous peoples and ultimately as individuals."
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