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

handle is hein.journals/ylr118 and id is 1042 raw text is: THE AvLru LAW JORNL

KRISTEN A. CARPENTER, SONIA K. KATYAL, AND ANGELA R. RILEY
In Defense of Property
A B ST TR 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 ofpeoplehood 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 UT H OR 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 Pefialver, 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.

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