In Defense of Property
104 Pages Posted: 14 Aug 2008 Last revised: 2 Dec 2011
Date Written: November 30, 2011
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 protections for cultural property impede 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 -- emphasizing rights of exclusion and alienation and norms of commensurability and commodification -- that reflects neither the substance of indigenous cultural property claims, nor major theoretical developments in the broader field of property law. Drawing upon the foundational work of Margaret Jane Radin linking "property" to "personhood," this Article situates indigenous cultural property claims (particularly those of American Indians) within the interests of "peoples," and "peoplehood." Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant "ownership" model, which consolidates control in the title-holder, the same is not true about indigenous peoples' cultural property claims. Indeed, 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 that draws upon corporate, environmental, and indigenous literature to explain and justify indigenous peoples' cultural property claims in terms of their fiduciary obligations toward cultural resources. By introducing an approach that locates the metaphorical bundle of rights within non-owners as well as owners, we highlight non-owners' duties, rights, and obligations to tangible and intangible goods, even in the absence of title and possession. We do not foreclose the appropriateness of indigenous peoples' ongoing claims to ownership of property wrongfully taken from them, nor do we discount the potentially overlapping nature of ownership and stewardship. Yet we posit that re-envisioning cultural property law in terms of peoplehood 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.
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By Amnon Lehavi