Alderman on Cultural Property Law and Indigenous Peoples

The purpose of this paper is to identify ethical challenges in cultural property law pertaining to indigenous peoples. Doing so is a necessary step in promoting a meaningful discourse over key crises in the cultural property trade.  By addressing ethical concerns in a discrete manner, we can cut through rhetoric, facilitate communication, and propose solutions that more precisely target harms born of the illicit trade in cultural property and repatriation disputes. I focus on indigenous peoples because they have an ethical stake in cultural property disposition, and they are the least represented in the international cultural property debates.
 
. . .  In Part II, I provide the background and context within which this discussion arises, answering the question, “Why define the ethical issues?” I describe a model of ethical decision-making originally developed for use in business, called the 5Ps Method. I explain that we are starting at the base of the 5Ps pyramid with “Problem,” which requires identifying the ethical problem. In surveying the surrounding facts, I describe the ongoing crisis in the cultural property trade, including divisiveness in scholarly debates and lack of clarity as to legal versus ethical concerns. I also note the recent passage of the UN Declaration of the Rights of Indigenous Peoples, which functions as an excellent backdrop to highlight indigenous concerns as independent from those of other stakeholders, including source nations.

In Part III, I parse several ethical concerns pertaining to indigenous peoples that emerge from the cultural property debates:
(1) Indigenous descendants of creator cultures are underrepresented in the cultural property debates;
(2) In cultural property law, control/possession and beneficial interest are inextricably linked, and indigenous peoples are not given adequate beneficial interest in their artifacts due to arguments against their getting control; and 
(3) Unsolicited representation of indigenous peoples constitutes a reinforcement of the idea that they are in need of custodial care, inherently undermining arguments that they are competent tocontrol cultural property.
 
In Part IV, I conclude with several recommendations. First, I suggest a more pragmatic approach to cultural property disputes, urging stakeholders to more clearly distinguish between legal considerations and ethical ones. Second, I urge indigenous peoples to assert themselves on the international cultural property front, independently from source nations, since ethical debates so often focus on the interests of indigenous groups. Recognizing this is not always possible, I encourage source nations to better involve indigenous peoples in repatriation initiatives. Finally, consistent with the purpose of this paper, I suggest that all stakeholders participate in pragmatic, meaningful discourse as to how these ethical issues might be creatively and categorically addressed.

Questions or Comments? Email me at derek.fincham@gmail.com