In this article, I use the 5Ps Framework for Ethical Problem Solving to begin meaningful discourse on the ethical problems in cultural property law pertaining to indigenous descendants of creator cultures. I use the divisiveness in the cultural property debates and the recent passage of the UN Declaration on the Rights of Indigenous Peoples as a backdrop, highlighting points of tension between indigenous interests and those of other cultural property stakeholders.
I identify three ongoing ethical problems in international cultural property law: (1) that indigenous peoples are persistently underrepresented; (2) that the current cultural property model inappropriately ties possession/control to beneficial interest, such that arguments against indigenous peoples getting control of artifacts prevent them from receiving a beneficial interest; and (3) that unsolicited representation of indigenous interests reinforces the damaging idea that they are in need of custodial care, undermining the argument that they are competent to control cultural property.
I conclude with a recommendation that stakeholders proceed to the second level of ethical decision making, exploring what options will address these ethical concerns. Indigenous involvement in this process in crucial. I suggest that better recognition is given to indigenous interests as distinct from those of other stakeholders, especially source nations. I further propose that indigenous peoples are more effectively involved in resolving international cultural property disputes.
This article was published in the Idaho Law Review.
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