Elena A. Baylis has posted “Looted Cultural Objects,” forthcoming in the Columbia Law Review Forum, on SSRN. Here is the abstract:
In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. But while the United States does not have a law concerning looted foreign cultural objects, it does have a statute governing the repatriation of Native American cultural items and human remains. The Native American Graves Protection and Restoration Act requires museums to return designated Native American cultural objects to their communities – even if they were obtained before the law went into effect. This statute offers a valuable model for repatriating foreign cultural objects that were taken from formerly colonized peoples.
Anthony Hernandez has published “Tribal Trademark Law” in the Stanford Law Review. Here is the abstract:
Native American tribes are increasingly creating their own intellectual and cultural property statutes. Of all the new legislation, tribal trademark law in particular is an engaging yet understudied area. By studying tribal trademark law, it becomes possible to evaluate the nature and scope of tribal sovereignty. And studying tribal trademark law provides an opportunity to consider how federal trademark law might incorporate tribal innovations. Situated at the intersection of tribal law, intellectual property, and tribal sovereignty, this Note asks whether the federal government is prepared to incorporate and recognize tribal trademark law in the same way that it has done for states’ laws.
Arthur Lazarus, the general counsel of the Association on American Indian Affairs (and the drafter of the original bill that became the Indian Child Welfare Act), filed amicus briefs in a suit by a Navajo tribal citizen challenging the power of the Secretary of the Interior to approve the Navajo Tribal Council’s ban on peyote use by the Native America Church. The case was filed as Oliver v. Seaton (D.D.C.):
The challenge really was against the Navajo ban, but Mr. Oliver challenged the Secretary’s approval of the ban, alleging that the approval violated the Exercise Clause. An important aspect of the AAIA’s amicus brief was that Talton v. Mayes, which seemingly held the federal Constitution did not regulate tribal power, did not govern the violation of “fundamental rights.”
There’s an interesting effort to compare tribal nations to the American territories here. We know from cases as recent as Puerto Rico v. Sanchez-Valleregarding Puerto Rico’s sovereignty that tribal sovereignty is more robust that Lazarus credits here. Note the conclusion, invoking the axiom that the “Constitution . . . follows the flag,” usually invoked in war crimes commission law like in the Guantanamo Bay cases.
Needless to say, the Navajo Nation was upset that the AAIA threw its support behind the Native American Church and not the tribe.
Mr. Oliver ultimately did not prevail. See Oliver v. Udall, 306 F.2d 819 (D.C. Cir. 1962).
Turtle Talk 
You must be logged in to post a comment.