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118 Yale L. J. 1022 (2008-2009)
In Defense of Property

handle is hein.journals/ylr118 and id is 1042 raw text is: KRISTEN A. CARPENTER, SONIA K. KATYAL, AND ANGELA R. RILEY In Defense of Property A B S T R A C T. 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 propertizing culture impedes 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 that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of peoples rather than persons, arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, which consolidates control in the title-holder, 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 of property to explain and justify indigenous peoples' cultural property claims in terms of nonowners' fiduciary obligations toward cultural resources. 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. A U T H O R S. Kristen A. Carpenter is Associate Professor of Law, University of Denver Sturm College of Law. Sonia K. Katyal is Associate Professor of Law, Fordham School of Law. Angela R. Riley is Professor of Law, Southwestern Law School. The authors would like to thank Nestor Davidson, David Fagundes, Martin Flaherty, Matthew L.M. Fletcher, Carole Goldberg, Tracy Higgins, Neal K. Katyal, Esther Lucero, Kevin Noble Maillard, Hiroshi Motomura, Stephen Munzer, Eduardo Penalver, Gowri Ramachandran, Kal Raustiala, Russell Robinson, Susan Scafidi, Joseph William Singer, Alex Tallchief Skibine, Madhavi Sunder, Josh Swartz, Christine Tan, Molly Van Houweling, Robert A. Williams, Jr., Thatcher Wine, and participants at the University of Colorado Property Works in Progress Symposium, the Center on Property, Citizenship, Society, and Entrepreneurship at Georgetown Law School, and faculty workshops at Michigan State Law School, University of California Hastings College of the Law, University of California Irvine School of Law, UCLA School of Law, Santa Clara Law School, Southwestern Law School, University of New Mexico School of Law, and Cornell Law School, for helpful comments. 1022

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