Straight Stealing: Towards an Indigenous System of Cultural Property Protection

Abstract

Incidents involving theft of indigenous peoples' traditional knowledge and the blatant appropriation of culture have become more widely acknowledged in recent decades. It is now apparent that international, national, and tribal laws must work together to protect the cultural property of indigenous groups. However, tribal law, which provides vital cultural context, must serve as the foundation. Unlike top-down legal systems, tribal laws reflect tribal economic systems, cultural beliefs, and sensitive sacred knowledge in nuanced ways that national and international regimes simply cannot. Accordingly, this Article offers two central reasons why the development of tribal law is critical for indigenous peoples to direct their own cultures and destinies in a technological world. First, the essence of sovereignty for indigenous peoples means exercising their inherent authority to define tribal laws and be governed by them. The development and enforcement of tribal legal systems reinforces tribal sovereignty and affirms principles of self-determination. Additionally, when extant and ascertainable, tribal law can influence dominant legal systems. Adjudicatory bodies increasingly draw on tribal law to address issues that go to the essence of tribal life. Focusing on the sui generis, tribal law systems of federally recognized tribes in the contiguous United States, this Article examines in detail the actions tribes are undertaking to ensure the preservation of their cultural property.

Keywords: indigenous, cultural property, intellectual property, traditional knowledge, tribal law, native american, american indian, sovereignty, appropriation, globalization