THE ASCENSION OF INDIGENOUS CULTURAL PROPERTY LAW.

• Author: Riley, Angela R.

Indigenous Peoples across the world are calling on nation-states to "decolonize" laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples' cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of "Navajo panties," the Quileute Tribe sought to enjoin Nordstrom's marketing of "Quileute Chokers," and the descendants of Tasunke Witko battled to end production of "Crazy Horse Malt Liquor." And today, Indigenous Peoples are fighting to preserve sacred ceremonies and religious practices at places like Standing Rock, Oak Flat, and Bear's Ears. Though the claims range from "lands to brands, " these conflicts are connected by a common thread: they are all contemporary examples of Indigenous Peoples' efforts to protect their cultural property.

As issues surrounding cultural property play out on the global stage, there is a parallel movement underway within Indigenous communities themselves. More than fifteen years ago, in 2005, I conducted a comprehensive study of tribal law to understand what American Indian tribes were doing to protect their own cultural property within tribal legal systems. Since my original study, the ground around issues of cultural preservation and appropriation has shifted dramatically. Transformative changes in human and Indigenous rights--including the 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples, among others--have reignited interest in Indigenous Peoples' own laws. Inspired by a convergence of global events impacting cultural rights, in 2020 and 2021, I set out to update my survey results and analyze the tribal cultural preservation systems and tribal laws of all 574 federally recognized American Indian tribes and Alaskan Native Villages in the United States.

This Article reports those findings, situating the results in a human rights framework and leading to a core, central thesis: the data reveal a striking increase in the development of tribal cultural property laws, as Indian tribes seek to advance human and cultural rights in innovative and inspired ways. Indeed, in this Article, I contend we are witnessing a new jurisgenera five moment today in the cultural property arena, with tribal law already influencing decisionmakers at multiple 'sites'--international, national, and subnational--in real time, with great potential for the future. To further demonstrate this phenomenon, I highlight the case study of the recent agreement to repatriate the Maaso Kova, a ceremonial deer head, from Sweden to the Yaqui peoples, and I also introduce several other examples where the seeds have been planted for the growth of the next jurisgenerative moment in Indigenous cultural property rights.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Tribal Sovereignty: A Law of One's Own B. Mismatch C. Why Tribal Cultural Property Law? 1. Living Sovereignty 2. Magnifying Cultural Difference 3. External Application II. RESEARCH FINDINGS A. Methodology B. Overview: Comparative Findings and Identifying Trends 1. Tribal Websites 2. Tribal Cultural Preservation Programs and Tribal Historic Preservation Officers 3. Tribal Cultural Property Laws a. Cultural Preservation b. Burial Sites, Funerary Objects, and Repatriation c. Sacred Sites and Ceremonial Places d. Intangible Property e. Data Sovereignty III. TRIBAL LAW INNOVATIONS AND THE NEXT JURISGENERATIVE MOMENT A. Repatriation of the Yaqui Maaso Kova B. Jurisgenerative "Seeds" of Change CONCLUSION INTRODUCTION

Indigenous Peoples across the world are calling on nation-states to "decolonize" laws, structures, and institutions that negatively impact them. Just recently, the New York Times ran a featured story highlighting how Indigenous Peoples have appealed to courts and international institutions to aid in the goal of "reversing colonialism." (1) Though the claims are broad based, there is a particular growing global emphasis on issues pertaining to Indigenous Peoples' cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. (2)

In the United States, for example, Indigenous advocacy around cultural appropriation has led to the Washington football team's decision to finally abandon its infamous R-skins team name (3) and has challenged marks seemingly indelibly ingrained in the American fabric, like the Jeep Cherokee (4) or the Indian maiden on Land O' Lakes butter, which alternately reify negative stereotypes of Native peoples or attempt to erase Indigenous identity altogether. (5) For Indigenous Peoples, the demands for protection of Indigenous cultural property run deep and are directly linked to the dispossession of Indigenous lands, broken treaties, and Native genocide. (6)

Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of "Navajo panties," (7) the Quileute Tribe sought to enjoin Nordstrom's marketing of "Quileute Chokers," (8) and the descendants of Tasunke Witko battled to end production of "Crazy Horse Malt Liquor." (9) And today, Indigenous Peoples are fighting to preserve sacred ceremonies and religious practices at places like Standing Rock, Oak Flat, and Bear's Ears. (10) Though the claims range from "lands to brands," (11) these conflicts are connected by a common thread: they are all contemporary examples of Indigenous Peoples' efforts to protect their cultural property. (12) And this advocacy is not limited to the United States, as Indigenous Peoples across the globe assert their rights and push back against the mass appropriation and commodification of Indigenous culture. (13)

As issues surrounding cultural property and cultural appropriation play out on the global stage, there is a parallel movement underway within Indigenous communities themselves. More than fifteen years ago, I set out to conduct a comprehensive study and report on what American Indian tribes within the lower forty-eight states were doing to protect their own cultural and intellectual property within tribal legal systems. (14) Since my previous findings on this subject were published in 2005, there have been seismic shifts in Indigenous rights and an increased awareness of the devastating consequences of colonization on Indigenous Peoples. Moreover, in 2007, the U.N. General Assembly overwhelmingly adopted the U.N. Declaration on the Rights of Indigenous Peoples (the Declaration), and in 2010 the United States finally reversed its initial opposition and expressed its support for the Declaration. (15) In addition to these remarkable changes, as my coauthor Kristen Carpenter and I have written elsewhere, the world has since witnessed a "jurisgenerative moment" in Indigenous and human rights. (16) We described that phenomenon as typified by a dynamic system of "multiple site" (17) engagement, and we demonstrated how Indigenous rights developing at tribal, national, and international levels have produced a complex interplay of laws that have greatly expanded protections for Indigenous Peoples.

Today, the ground around issues of cultural rights and cultural appropriation is shifting yet again. In recent years, tribes have employed a combination of tribal, (18) federal, (19) and international laws (20) in attempts to protect their cultural property through both litigation and diplomacy. Not surprisingly, much has been written about the scope and potential of federal and international laws to address these issues, while the tribal law chapter of this jurisgenerative story has remained obscured in the background. But it is a story that demands to be told. This Article seeks to do just that.

In the summer of 2020, I embarked on a new project. Expanding dramatically--in both breadth and depth--on my 2005 work, I researched and analyzed the tribal cultural preservation systems and codes of all 574 federally recognized American Indian tribes and Alaskan Native Villages in the United States. (21) My research findings lead me to a core, central thesis: the data reveal a striking increase in the development of tribal cultural property laws, as Indian tribes seek to advance human and cultural rights in innovative and inspired ways. And my work goes a step further, demonstrating through a case study of the repatriation of the Maaso Kova, a ceremonial deer head from Sweden to the Yaqui peoples, that we are witnessing a new jurisgenerative moment today in the cultural property arena, with tribal law working in conjunction with laws at multiple sites--international, national, and subnational--to influence external decisionmakers in real time.

This Article makes an additional, key contribution to the Indigenous rights literature, as it affirms the enormous significance of the development of tribal cultural property law, even where tribes have limited jurisdiction over what happens beyond reservation borders. (22) In contrast to international and federal laws, tribal law promotes tribal sovereignty and Indigenous self-determination, as articulated in the Declaration, is uniquely situated to capture and reflect Indigenous cultures and lifeways, and can and does shape outcomes in ongoing cultural property disputes. For all these reasons, understanding tribal cultural property law and the significance it holds in Indigenous communities is essential to truly grasp the threat posed to tribal cultural survival and to ensure continued Indigenous existence.

This Article proceeds as follows. Part I briefly explains the metes and bounds of tribal sovereignty and the scope of Native Nations' authority to enact and enforce tribal law within their...