Protection of First Nations Cultural Heritage: Laws, Policy, and Reform

Thoughts and Fundamental Questions" by Michael Asch first, even though it is the last chapter in the collection, and, throughout, kept in mind the questions he posed: "What could be more reasonable than a desire to ensure that you are the custodian of your own cultural heritage?And what could be more unreasonable than holding another people's cultural heritage, of ongoing significance to them, in your hands?" 2 Unfortunately, as many of the contributions to this fine collection demonstrate, action based on the simple measure of what would be reasonable in the circumstances has often proved elusive, whether in relation to the repatriation and trade of indigenous cultural heritage (part 1 of the collection), the protection of heritage sites and ancestral remains (part 2), or the recognition of intangible heritage (part 3).Even as dominant non-indigenous legalpolitical systems in countries such as Canada and Australia have moved, albeit slowly, often grudgingly, and incompletely, towards greater respect for, and accommodation of, the territorial property rights of indigenous communities, demands for genuine recognition for cultural property rights continue to meet with resistance.At first glance, it might be assumed that cultural claims would be less affronting to non-indigenous interests than territorial claims or claims to resources; however, in chapter 12, "Looking beyond the Law: Questions about Indigenous Peoples' Tangible and Intangible Property", Val Napoleon offers a contrary hypothesis.Having observed that attempts to explain the failure to protect indigenous cultural heritage have often focused on the limitations of formal intellectual property law regimes for the protection of indigenous intellectual property and cultural heritage, Napoleon continues:But look a little more closely.Just beneath the surface, another dynamic becomes discernable.It has to do with the consequences of locating indigenous peoples' tangible and intangible property under the umbrella of 'cultural'.It is by this process that indigenous peoples' property becomes disembodied from its political, social, economic, and legal moorings within their societies.Arguably, it is precisely this displacement of property from that which gives it meaning and coherence that hinders efforts to protect it.Does adding the label 'cultural' to property facilitate its commodification and cause its vulnerability? 3

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