Addendum to Reframing Indigenous

ADDENDUM TO REFRAMING INDIGENOUS CULTURAL ARTIFACTS DISPUTES: AN INTELLECTUAL PROPERTY-BASED APPROACH CORTELYOU C. KENNEY Please note that by the time this issue went to print, Yale University agreed to return the collections known as the “lost treasure” of Machu Picchu to Peru. This article does not reflect this change of events. 501 502 CARDOZO ARTS & ENTERTAINMENT [Vol. 28:501 REFRAMING INDIGENOUS CULTURAL ARTIFACTS DISPUTES: AN INTELLECTUAL PROPERTY-BASED♦ APPROACH ∗ CORTELYOU C. KENNEY INTRODUCTION.............................................................................503 I. THE BATTLEGROUND OF REPRESENTATION ...............................508 A. The Rise of The Museum in an Age of Empire Building ......................................................................508 B. Museums as Sites of Silence and Cultural Amnesia ..511 II. REFRAMING THE ARTIFACTS DEBATE........................................514 A. Physical Property Regimes: The Failure to Address Questions of Knowledge and Representation..........514 1. Inefficacy of Current Physical Property Regimes 516 2. Inadequate Cause of Action .................................517 3. Inadequate Remedies (Property Rules, Liability Rules, and Inalienability Rules)...........................519 B. The Trend Towards Indigenous Intellectual Property ......................................................................520 1. Federal, State, and Tribal Laws and Regulations 521 2. International Regulations.....................................525 C. Reframing Cultural Artifacts: Through the Lens of Intellectual Property ..................................................527 1. The Problem of Knowledge..................................528 2. The Problem of Representation...........................530 3. Artifacts Themselves As “Intellectual Property”..532 III. THE PERILS OF INTELLECTUAL PROPERTIZATION....................534 A. Defining Indigeneity...................................................535 B. Cultural Hybridity .......................................................538 C. Censorship...................................................................539 ♦ Permission is hereby granted for noncommercial reproduction of this article in whole or in part for education or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete ∗citation, and this copyright notice and grant of permission be included in all copies. J.D. University of California, Berkeley, School of Law (Boalt Hall); A.B. Dartmouth College. This paper is dedicated to the memory of Professor Philip Frickey, teacher, inspiration, and intellectual pioneer. The author would like to thank her father, James Kenney, for his incisive criticisms and support. She is also grateful to Angela Harris, Amy Kapczynski, Joseph Sax, Curtis Buckley, Christopher Heaney, and Daniel Berman. © 2011 Cortelyou C. Kenney. 2011] INDIGENOUS CULTURAL ARTIFACTS 503 D. The Master’s Tools......................................................540 IV. ESCAPING THE PARADOX.........................................................541 A. Intellectual Property and “Cultural Stewardship”.....542 1. Strong Rights, Soft Remedies...............................545 2. Nonrivalry as the Basis for Consensus Building ..547 B. The “Wrap Around” Effect in Cultural Artifacts Context .......................................................................549 CONCLUSION ................................................................................551 INTRODUCTION Indigenous cultural artifacts are traditionally seen through the prism of physical property. Disputes over a spectrum of objects, from human remains to sacred objects, center around who has title and possession, when import and export can be prevented, and under what circumstances economic remuneration or repatriation are appropriate. Museums, academic researchers, countries of origin, and indigenous descendents fight bitterly over these questions, prompting heated public relations campaigns, government lobbying, and litigation. A recent high-profile example of such skirmishes involves a storied collection of Incan remains, pottery and jewelry known as the “lost treasure” of Machu Picchu.1 The pieces were unearthed by swashbuckler and Yale professor Hiram Bingham during his expeditions to Peru in 1912 and 1914-1915, carted to New Haven, and abandoned in university vaults for over half a century. After years of stalled negotiations, Peru filed suit in December 2008, seeking repatriation of the collections and monetary damages.2 Yet there are reasons to question whether the Yale-Peru standoff, and cultural artifacts disputes more generally, ought to be seen solely in physical-property terms. Peru also alleges breach of fiduciary duty, arguing Yale failed to adequately care for the collections by leaving thousands of mummy bundles in cardboard boxes and blocking access to studies and photographs of the 1 This term was first invoked by Peru’s former first lady, now a professor of anthropology at Stanford University, to describe the artifacts. Eliane Karp-Toledo, The Lost Treasure of Machu Picchu, N.Y. TIMES, Feb. 23, 2008, http://www.nytimes.com/2008/02/23/opinion/23karp-toledo.html. Descriptions of the collections vary depending on the commentator. For excellent general discussions of the controversy, see Arthur Lubow, The Possessed, N.Y. TIMES MAG., June 24, 2007, http://www.nytimes.com/2007/06/24/magazine/24MachuPicchu-t.html; Christopher Heaney, Bonesmen: Did Yale Plunder Peru?, NEW REPUBLIC, Oct. 23, 2006, at 14, available at http://academic.mu.edu/matthew/hist071/Hist071fall07/TNR_CHeaney_10-23-06.pdf [hereinafter Bonesmen]; CHRISTOPHER HEANEY, CRADLE OF GOLD: THE STORY OF HIRAM BINGHAM, A REAL-LIFE INDIANA JONES, AND THE SEARCH FOR MACHU PICCHU (2010). 2 Republic of Peru v. Yale University, 1:08-cv-02109-HHK (D.D.C. Dec. 5, 2008). 504 CARDOZO ARTS & ENTERTAINMENT [Vol. 28:501 remainder.3 More important are the assertions that Peru is entitled not simply to Machu Picchu artifacts, but also to any “related materials”—including “reports, studies, and photographs related to those artifacts”4—and that Yale falsely represented in a widely attended and highly lucrative public exhibition that the artifacts ‘belonged’ to the Peabody Museum.5 It is no accident that Peru’s suit coincides with the rise of global movements for indigenous rights. These movements have lobbied not only for self-determination through ownership of physical property—in particular, land reform—but, increasingly, of information.6 These ideas have gained so much currency in certain quarters that they have become axiomatic; to some, it is simply unthinkable that indigenous groups should not be able to control the manner in which they are discussed, portrayed, or thought of since many portrayals can have clearly discernable negative consequences.7 While stopping short of such a conclusion, this article argues that the informational perspective should be considered in the arena of indigenous artifacts disputes. Rather than demarcating battle lines solely along the physical contours of the collection at stake, we must also consider them in terms of the intellectual ‘real estate’ associated with contested objects. This is not because such a view is natural or inevitable, at least not any more so than 3 See Complaint, ¶¶ 41, 110-16 Republic of Peru v. Yale University, 1:08-cv-02109-HHK (D.D.C. Dec. 5, 2008); Hugh Eakin, Inca Show Pits Yale Against Peru, N.Y. TIMES, Feb. 1, 2006, http://www.nytimes.com/2006/02/01/arts/design/01mach.html. 4 See Complaint, supra note 3, at ¶¶ 88-91; First Amended Complaint ¶ 144, Republic of Peru v. Yale University, 3:09-cv-01332-AWT (D. Conn. Oct. 16, 2009) (alleging that Yale “also holds research papers, studies, and reports about the artifacts, as well as illustrations and photographs made of the Artifacts”). 5 See Complaint, supra note 3, at ¶¶ 79-80. 6 See Kristen A. Carpenter, Sonia Katyal & Angela Riley, In Defense of Property, 118 YALE L.J. 1022, 1025 (2009) (noting domestic and global movements grounded in the language of property to challenge the expropriation of indigenous “lands, medicines, ceremonies, artwork, and natural resources”). For an example of the current debate surrounding this topic, see MICHAEL BROWN, WHO OWNS NATIVE CULTURE? (2003) (arguing against fencing in of indigenous information and premising his approach on the scholarship of Lawrence Lessig); Naomi Mezey, The Paradoxes of Cultural Property, 107 COLUM. L. REV. 2004 (2007) (contending that cultural property laws stifle the development of culture including cultural “hybridity”); Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 YALE L.J. 804, 883 (2008) (discussing the countervailing “backlash” of “access to knowledge” movements centered around the freeing, rather than fencing in, of intellectual property). 7 See, e.g., Suzanne D. Painter-Thorne, Contested Objects: Contested Meanings: Native American Grave Protection Laws and Interpretation of Culture, 35 U.C. DAVIS L. REV. 1261, 1265 (2002) (making this assumption in context of cultural artifacts disputes); Kelly Mauceri, Of Fakes and Frauds: An Analysis of Native American Intangible Cultural Property Protection, 5 GEO. J.L. & PUB. POL’Y 263, 264 (2007) (same for Native American storytelling); Marina Hadjioannou, The International Human Right to Culture: Reclamation of the Cultural Identities of Indigenous Peoples Under International

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