The Ascension of Indigenous Cultural Property Law

Indigenous Peoples across the world are calling on nation-states to decolo-nize laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues per-taining to Indigenous Peoples' cultural property and the harms of cultural ap-propriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to de-fend 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 bat-tled 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 Indig-enous 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 fed-erally 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 in-crease in the development of tribal cultural property laws, as Indian tribes seek to advance human and cultural rights in innovative and inspired ways. In-deed, in this Article, I contend we are witnessing a new jurisgenerative moment today in the cultural property arena, with tribal law already influencing deci-sionmakers at multiple 'sites'-international, national, and subnational-in real time, with great potential for the future. To further demonstrate this phe-nomenon, 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.

Automated summary

Indigenous peoples around the world are urging nation-states to decolonize laws and institutions that have a negative impact on them. They are actively fighting to protect their cultural property, including lands and brands, through legal actions and protests. At the same time, there is a parallel movement within indigenous communities themselves to preserve and protect their cultural heritage.