In defense of property.

• Author: Carpenter, Kristen A.

ARTICLE CONTENTS INTRODUCTION I. CONCEPTIONS OF CULTURAL PROPERTY A. An Indigenous Legacy of Cultural Property B. Critiques of Cultural Property 1. A View from the Marketplace of Goods 2. A View from the Cultural Commons 3. A View from Cosmopolitanism II. PEOPLEHOOD AND CULTURAL STEWARDSHIP A. From Personhood to Peoplehood 1. Conceptualizing Peoplehood from Personhood 2. Indigenous Peoplehood and Cultural Property B. From Ownership to Stewardship 1. Introducing Cultural Stewardship: Views from Indigenous, Corporate, and Environmental Theory 2. Liability Rules, Governance, and Stewardship 3. Dynamic and Static Stewardship: Fungibility and Inalienability III. INDIGENIZING CULTURAL PROPERTY A. Tangible Cultural Property B. Intangible Cultural Property C. Real Cultural Property CONCLUSION 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, (1) 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. Internationally, indigenous groups in places as diverse as Belize (5) and Australia (6) have also turned to property law to challenge the expropriation of their lands, medicines, ceremonies, artwork, and natural resources. (7)

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 of protection, philistinism triumphing in the name of enlightened ideas." (10) Legal scholars in particular-including those who typically align themselves with progressive causes--strongly criticize indigenous peoples' efforts to assert ownership and autonomy over their tangible and intangible traditional resources, arguing that culture is and must remain part of an entitlement-free commons. In one recent article, for example, Naomi Mezey contends that "the idea of property has so colonized the idea of culture that there is not much culture left in cultural property." (11) For Mezey, the notion of indigenous cultural property raises the likelihood that once indigenous peoples obtain title to cultural property, they will use it to exclude others--a practice that would inevitably limit the free flow of culture.

In our view, these critiques arise, in part, because of the absence of a coherent rationale that undergirds the protection of indigenous cultural property. Without a viable framework, scholars tend to link cultural property protections to a narrow paradigm of property itself, associating property with traditional rights of alienability, title, and exclusion, and norms of commodification and commensurability. Underlying many of these critiques is a deep and pervasive assumption that in order to obtain protections for cultural goods outside of the market, the law must create exceptions for certain groups. (12) Such views are evident in contemporary legal opinions, including the Ninth Circuit's recent en banc decision in Navajo Nation v. U.S. Forest Service. (13) In Navajo Nation, several tribes claimed that the Forest Service's decision to allow the use of recycled water containing human waste for snowmaking on the San Francisco Peaks would violate the Religious Freedom Restoration Act by desecrating one of their most sacred sites and burdening numerous religious practices and belief systems. (14) The Ninth Circuit's opinion, rejecting the tribes' claims, evinces the familiar fear that if the law were to protect Indian religious and cultural interests, Indians effectively would acquire "ownership" of the public lands. (15)

In reality, indigenous cultural property transcends the classic legal concepts of markets, title, and alienability that we often associate with ownership, making it all the more important for property scholars to evaluate its parameters. By challenging these classic property constructs, indigenous cultural property claims force us to contemplate the intellectual divide between two competing visions of property. The classic view of property law focuses on the predictability and certainty of protecting the individual owner's rights of exclusion (16) and alienation primarily for wealth-maximization purposes. (17) Yet a more relational vision of property law honors the legitimate interests of both owners and nonowners, in furtherance of various human and social values, potentially including nonmarket values. (18) Accordingly, the classic view focuses on property's stabilizing force, whereas the relational view emphasizes its fluidity and dynamic character. (19) Perhaps most problematic for indigenous cultural property claims, the classic view of property law, including its ownership model, is intimately tied to a paradigm of liberal individualism. Current theories of property acquisition grounded in this tradition, whether economic or noneconomic, fail to take into account the prospect of group-oriented claims of custody and control that are so critical to the protection of indigenous cultural property.

Responding to this omission, and building on the foundational work of Margaret Jane Radin, this Article develops a model of property and peoplehood, and in so doing articulates a justification for group-oriented legal claims to indigenous cultural property. Peoplehood, we argue, dictates that certain lands, resources, and expressions are entitled to legal protection as cultural property because they are integral to the group identity and cultural survival of indigenous peoples. We develop this argument in reference to specific examples, such as the case of Navajo Nation and the protection of the San Francisco Peaks, demonstrating that some cultural resources are so sacred and intimately connected to a people's collective identity and experience that they deserve special consideration as a form of cultural property.

Our focus on peoplehood vis-a-vis personhood inspires us to look beyond the static forbearance of possessive individualism that finds such forceful expression in traditional models of property. Classic ownership theory tends to overlook the possibility of nonowners exercising custodial duties over tangible and intangible goods in the absence of title or possession. Yet indigenous peoples have historically exercised such custodial duties, both as a matter of internal community values that emphasize collective obligations to land and resources, and as a matter of practical necessity following the widespread divestiture of title and possession. Indigenous cultural property claims, and programs meant to effectuate them, thus reflect a fiduciary approach to cultural property that takes into account indigenous peoples' collective obligations toward land and resources. A wealth of literature has analyzed the notion of fiduciary duties, existing in either the presence or absence of title, in indigenous, corporate, and environmental theories of "stewardship." Drawing on this literature, we identify a similar fiduciary paradigm in the context of cultural property. To the extent that indigenous peoples' cultural property claims are premised on custodial duties toward specific properties, we argue that such claims are more appropriately characterized through the paradigm of stewardship rather than ownership. Because they often act in the absence of fide, such accommodations tend to fall outside the paradigms of individuality and alienability upon which classic property law is premised. Thus, without rejecting the force or utility of ownership, we propose that cultural property claims are often better explained and justified through a stewardship model that effectuates the dynamic pluralism of group-oriented interests.

Ultimately, our Article advances two central arguments: first, we assert that cultural property critics inappropriately ground their critiques in a narrow set of assumptions about property that are based principally on a presumptive model of individual ownership. We then draw extensively upon the unique historical relationship between indigenous peoples and property law, and upon established property theory, to advance our next claim. We contend that even where the law creates specific protections for indigenous peoples' cultural property, such protections are not always anathema to established property rules. Contrary to prominent critiques, cultural property law, in such contexts, is part and parcel of a system that seeks to distribute entitlements along a spectrum so as to accommodate both the ownership and stewardship interests that attach to owners and nonowners. We contend that indigenous cultural property claims can be both...