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INTRODUCTION

Over the course of the last several decades, public awareness of the plight of indigenous peoples has grown rapidly, but they are still perhaps the most disadvantaged segment of the world's population.¹ Among the many factors contributing to that ignoble title, indigenous peoples and their advocates have identified their rights to the lands they occupy as a key issue.² Scholars and indigenous peoples themselves argue that "rights to lands and resources are property rights that are prerequisites for the physical and cultural survival of indigenous communities."³ Both the physical territory and the perpetuation of land tenure systems developed by those groups are necessary for the continuation of indigenous societies in their existing forms. "For many indigenous cultures, continued utilization of traditional systems for the control and use of territory is essential to their survival, as well as to their individual and collective well-being."⁴

International law currently protects the land rights of indigenous peoples in several ways,⁵ the most effective of which are found in the property rights protection provisions of several human rights [*pg 1062] instruments.⁶ Indigenous peoples, however, often have difficulty proving that they have a cognizable property interest in their traditional lands, making the human rights instruments futile. Arguing that indigenous lands are the cultural property⁷ of indigenous groups may be a useful way of proving the necessary property interest.

This Note explores the possibility of bringing together the divergent fields of indigenous land rights and cultural property to provide more expansive protection for indigenous lands. The combination is not a panacea, but it can both demonstrate a property interest in the land -- thereby bringing it within the protection of human rights treaties -- and focus the discussion on the fundamental interest underlying indigenous land claims: cultural survival. Part I discusses who indigenous peoples are and why they are searching for new ways to protect their traditional lands. Part II introduces the idea of cultural property and the two ways in which it is conceptualized. Part III applies those cultural property concepts to indigenous land claims, showing that cultural property can be a useful way of conceptualizing and demonstrating indigenous land claims.

I. WHO INDIGENOUS PEOPLES ARE AND WHY THEY ARE LOOKING FOR MORE PROTECTION FOR LAND CLAIMS

A. Indigenous Peoples, Indigenous Lands, and Their Historical Treatment

Before delving into the legal protections currently given to indigenous peoples and their lands, it is important to understand who indigenous peoples are, what indigenous lands are, and the historical treatment of both by the Western World. When one hears "indigenous peoples,"⁸ the images that first come to mind are often of [*pg 1063] hunters and gatherers in the Amazonian rainforests or herders on the African Savannah, but indigenous peoples can be found in at least seventy-four countries around the world and are estimated to account for 6 percent of the world's population.⁹ Creating a definition of such a large and diverse group is a difficult task. Although there is no widely accepted definition of indigenous peoples under international law,¹⁰ many attempts at a definition have been put forward.

At the most basic level, "indigenous peoples are best defined as . . . groups traditionally regarded, and self-defined, as descendants of the original inhabitants of lands with which they share a strong, often spiritual bond." They "are, and desire to be, culturally, socially and/or economically distinct from the dominant groups in society."¹¹

The International Labor Organization (ILO) laid out one of the most widely cited¹² definitions of indigenous peoples.¹³ The ILO created a two-part definition; a group needs to satisfy only one part to be considered an indigenous people. The first part includes those "whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations."¹⁴ The second part includes those who are "descen[ded] from the populations which inhabited the country . . . at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain [*pg 1064] some or all of their own social, economic, cultural and political institutions."¹⁵

Defining "indigenous lands" poses similar problems,¹⁶ primarily in creating a definition that accommodates the variety of uses and land tenure systems utilized by indigenous peoples. The Brazilian Constitution contains one of the most expansive definitions.¹⁷ It defines indigenous lands as those used by indigenous peoples in any of four ways: those "occupied by [indigenous peoples] on a permanent basis, those used for their productive activities, those indispensable for the preservation of environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions."¹⁸

[*pg 1065]

Indigenous peoples have been struggling to protect their lands for centuries. When Europeans began colonizing other parts of the world, few protections were granted to indigenous peoples and their lands. John Locke articulated the quintessential European position on the rights of indigenous peoples: that they had no rights to lands they did not cultivate.¹⁹ Because the land tenure systems of many indigenous groups did not reflect the cultivation patterns established in Europe,²⁰ many settlers believed they had free rein to take control of many indigenous lands.²¹ The colonizers saw themselves not as dispossessing indigenous peoples but as creating economic use out of wasted land.²²

However, not all European scholars were convinced that their compatriots could deprive indigenous peoples of their land so easily. Some believed that indigenous Americans were legitimate owners of their traditional lands²³ and argued that "those ambitious European States which attacked the American Nations and subjected them to their avaricious rule, in order, as they said, to civilize them, and [to] have them instructed in the true religion . . . justified themselves by a pretext equally unjust and ridiculous."²⁴

These two perspectives, articulated centuries ago, are essentially the two voices heard in the debate surrounding indigenous land rights today. Whereas indigenous groups continue to claim that they are the legitimate owners of their traditional lands,²⁵ dominant groups argue [*pg 1066] that indigenous peoples do not have any rights to land to which they do not hold title under national law and that indigenous land use should bow to the forces of economic development.²⁶ When dominant groups help indigenous peoples secure their land rights, it is often to stimulate economic development for the benefit of the state²⁷ or to protect the environment,²⁸ rather than to benefit the indigenous groups. Although not unchallenged, the Lockean position on the land rights of indigenous peoples continues to influence the practices of many governments.²⁹

B. Protection of Indigenous Land Rights Under Domestic Law Today

In recent decades, activists, legal scholars, and indigenous groups themselves have challenged the traditional Lockean conception of indigenous peoples' property rights. As a result, protection for indigenous peoples' lands is generally increasing, but not all efforts to [*pg 1067] expand protection have been successful. Those countries attempting to secure indigenous land rights are doing so primarily in two ways. The first approach is to register and title indigenous lands either to communities as a whole or to certain individuals within the group.³⁰ The second approach is to set up a reserve system whereby indigenous groups do not receive formal title to their lands, but the lands are demarcated and protected as reserves for the indigenous groups.³¹ Neither approach is necessarily preferable to the other across the board because each country and indigenous group has its own unique needs and circumstances. Hunters and gatherers that forage lands also used by other groups might best be served by a reserve system. Primarily agrarian groups settled in a specific location, on the other hand, might benefit most from land titling; some groups might be best served by individual title and other groups by communal title.

Even in those countries that have been making great strides in the legal protection of indigenous land rights, actually implementing those policies has been difficult. In Australia, for example, the courts made a dramatic about-face from their traditional holding that the annexation of the continent to the British Empire vested the Crown with ownership of all lands on the continent, including those inhabited by indigenous peoples.³² In an effort to implement this new holding and formalize indigenous groups' rights to lands that previously had been believed to have vested in the Crown, the legislature enacted the Native Title Act to register land titles for indigenous peoples.³³ In interpreting the Native Title Act, the Australian High Court created strenuous qualification requirements.³⁴ For example, to receive title, a group must prove that its members are the direct biological descendants of the original inhabitants, have maintained a close connection to the land, and live according to substantially the same customs as their ancestors did at the time of [*pg 1068] colonization.³⁵ Thus, the Australian courts first found a legal basis for indigenous land rights by reinterpreting the effect of Australia's annexation to the British Empire, then later curtailed the ability of indigenous peoples to gain title to their lands under the Native Title Act.

In 1997, Bangladesh began registering land titles to indigenous individuals in its Central Highlands, an area historically comprised of communal lands.³⁶ The program has allowed indigenous farmers to secure both their land tenure and their livelihood, but less communal land has meant that poorer members of the indigenous community, who did not have their own lands to title, have fewer places to gather food and other necessary supplies.³⁷ Privatization in the Central Highlands has also contributed to the decline of traditional methods of helping the poor and indigent, as individual needs have taken new priority relative to communal needs.³⁸ Despite the best efforts of a program designed to make indigenous peoples more secure, the Bangladeshi titling program has contributed to the further impoverishment of the indigenous poor and the collapse of the traditional means by which the indigenous society took care of its needy members.

Despite the considerable difficulties in implementing the programs in Australia and Bangladesh, many other attempts have faced even more serious problems. Some countries have passed laudable new laws only to have deep-seated discrimination on the part of the dominant group impede implementation.³⁹ In other places, indigenous groups themselves have refused to accept the new system⁴⁰ [*pg 1069] because new land regimes and institutions that do not fit with existing norms are not easily incorporated into indigenous society.⁴¹ Critics argue that some attempts to secure indigenous land rights are not actually intended to benefit indigenous peoples; creating a land tenure system that conflicts with traditional practices can cause changes in the indigenous society that can be used by governments to force social change within the indigenous group.⁴²

Throughout the world, domestic governments are trying to find ways to protect indigenous peoples and their land rights.⁴³ Many domestic laws, however, do not give indigenous communities the protections they purport to ensure.⁴⁴ Indigenous peoples and their advocates have accordingly turned to international law for help.

C. Protection of Indigenous Land Claims under International Law

International intergovernmental organizations have tried to protect indigenous land rights in a variety of ways,⁴⁵ but those [*pg 1070] focusing on human rights claims have proven the most effective, finding acceptance in both domestic and international courts.⁴⁶

Two types of human rights provisions are used: those that protect the right of indigenous peoples to maintain their cultural system⁴⁷ and those that protect the right to property.⁴⁸ Indigenous peoples have used the former category by arguing that their cultural system cannot be maintained without securing rights to traditional lands.⁴⁹ This Note, however, focuses on the latter category and the possibility of using cultural property arguments to establish the requisite property interest. Protections for property rights themselves fall into two categories: those with generally applicable property protection [*pg 1071] provisions and those that specifically protect indigenous property rights.

Generally applicable provisions may be used to protect the property rights of indigenous peoples because such provisions protect the property rights of all people. The most broadly applicable of those protections is in the United Nations' Universal Declaration of Human Rights. The Declaration states simply, "Everyone has the right to own property alone as well as in association with others," and "no one shall be arbitrarily deprived of his property."⁵⁰

Other international treaties specifically call for the protection of indigenous peoples' property rights. For example, one ILO convention speaks directly to the rights of indigenous peoples, stating, "The rights of ownership and possession of the [indigenous] peoples concerned over the lands which they traditionally occupy shall be recognized."⁵¹

[*pg 1072]

D. Difficulties in Securing Protection for Indigenous Lands under International Law

Although international human rights law protects property rights, several hurdles face indigenous groups attempting to secure land rights under these provisions. The primary difficulty lies in establishing that their interests in land rise to the level of property interests. This difficulty derives from basic differences in the understanding of what constitutes property.⁵²

The term "property," as used in international treaties and conventions, has a meaning independent of that in domestic legal systems, but the exact definition is unclear.⁵³ The traditional Western model of property, which dominates both international law and the domestic laws of many countries around the world, centers on the idea of a single owner holding rights to property to the exclusion of all others.⁵⁴ This Western construction of property differs greatly from that of many indigenous systems, in which property rights, especially those with respect to land, do not vest in individuals⁵⁵ but rather in the community as a whole. "Communal, land-based peoples conceive of and interpret ownership in ways that are foreign to, and diminished by, [Western] property regimes."⁵⁶ Communal claims not only do not fit within the traditional Western conception of property,⁵⁷ but must [*pg 1073] also confront the traditional Western belief that communal ownership is economically inefficient.⁵⁸ Further compounding the problem, replacing communal rights with individual rights may frustrate the adaptive purposes for which the indigenous society developed the practice.⁵⁹ The collateral effects of registering individual titles in Bangladesh's Central Highlands are a clear example of this. Titling land increased security for some individual land farmers, but it also contributed to the collapse of the society's mechanism for caring for its poor.⁶⁰

These conceptual difficulties can be exacerbated by indigenous land tenure systems that are foreign to Western legal systems.⁶¹ For example, it is common for indigenous groups to engage in practices that would fail to demonstrate ownership in Western legal systems, such as migration or overlapping land use with other groups.⁶² "[S]uch traditional land and resource use patterns create forms of property that are recognized and functional within and among indigenous communities,"⁶³ but which are foreign to, and thus not easily handled by, the Western legal tradition.

Indigenous peoples and their advocates have forced both domestic and international legal communities to reevaluate the protections given to indigenous lands. Although many countries have attempted to deal with this issue domestically, shortcomings in those attempts have led indigenous peoples to turn to international human rights law for protection. Demonstrating that an indigenous group's interest in the lands it uses is a property interest has been difficult. In this effort, the concept of cultural property can be a useful tool to help indigenous groups establish property interests in their traditional lands and thereby come within the property protection provisions of international human rights laws.

[*pg 1074]

II. CULTURAL PROPERTY

Cultural property is a term often used but not clearly defined. The basic idea behind it, though, is quite simple: some things are of such great cultural significance that they deserve special protection outside of traditional property law.⁶⁴ A classic example of the question posed by cultural property is, "Should we allow the owner of a Rembrandt to use it as a dartboard?"⁶⁵ Traditional doctrines of property law say yes, because one of the rights of ownership is the right to destroy the property.⁶⁶ Most people, however, cringe at the idea of the owner of a Rembrandt sitting at home, casually tossing darts at it. That cringe is the seed that grew into the concept of cultural property. The idea behind cultural property is that a cultural treasure, like a Rembrandt, is taken out of the regular property regime and accorded special treatment to protect and preserve the item or to ensure its public availability. The special treatment might involve government ownership of the cultural treasure⁶⁷ or the placement of limitations on the owner's ability to alter, destroy, or transport the item.⁶⁸

Section A will examine the two schools of thought on why cultural property should be protected, and Section B will then examine the place of cultural property in international law.

A. The Property and Culture Schools of Cultural Property

Although the basic idea of cultural property is easy to understand, determining the precise contours of what is protected and why is substantially more difficult. There are two different schools of thought on why cultural property is protected: the Property School and the Culture School.⁶⁹ These two schools are distinguished by their [*pg 1075] focus on protecting either the property itself or the culture that values the property. The Property School emphasizes protecting the item at issue because of the intrinsic value of the item itself, whereas the Culture School emphasizes protecting the item for the sake of preserving the culture to which the item is significant.⁷⁰ Because they each justify a cultural property regime differently, they also differ in what they consider to be cultural property. For that reason, both schools must be examined in detail.

The debate surrounding the Elgin Marbles -- friezes from the Athenian Parthenon that were removed and that are currently displayed in the British Museum -- provides a relatively clear example of the difference between the two schools. Greece argues that these marbles should be returned because they are an important part of Greek heritage and are valuable because of what they mean to the Greeks.⁷¹ This is the Culture School perspective. The United Kingdom, meanwhile, argues that the Elgin Marbles should remain in the museum, where they can be preserved for posterity, rather than returned to the Parthenon where pollution in the Athenian air would irreparably damage them.⁷² The United Kingdom articulates the Property School. Both schools seek to protect items of cultural significance, but their motivations for providing this protection differ. The Property School seeks to protect the item to preserve it so that all people can enjoy it. The Culture School seeks to protect the item for the sake of the culture from which it came.

The Property School represents the most conventional understanding of cultural property; the Rembrandt-as-a-dartboard example fits within this school. Property School theorists define cultural property as "property which, on religious or secular grounds, is . . . of importance for archaeology, prehistory, history, literature, art or science."⁷³ To the Property School, the ultimate purpose of a cultural property regime is to protect the object itself. Items of [*pg 1076] cultural property contribute to a "common human culture"⁷⁴ and thus are the heritage of all humankind.⁷⁵

Because the Property School protects culturally significant items as the heritage of all, its primary concern is preserving and disseminating cultural property so that it can be enjoyed by future generations. An individual may own an item of cultural property, but the rights of ownership should be limited to protect, and ensure public access to, the object.⁷⁶ In the Elgin Marbles example, the United Kingdom argues that the primary concern should be protecting the Marbles so that they can be viewed and valued by people throughout the world and by future generations.⁷⁷ Although the Property School recognizes that "[s]eparated from its context . . . the object and the context both lose significance,"⁷⁸ if the proper preservation and dissemination of the object requires that it be removed from its original context, the concerns of preservation and dissemination prevail.⁷⁹ Thus, the United Kingdom recognizes that the Elgin Marbles lose something by being in a museum rather than on the Pantheon, but believes that such loss is outweighed by the benefit of preserving the Marbles.⁸⁰

On the other side, the Culture School argues that culturally significant items should be protected for the benefit of the society to which they belong. A central tenet of the Culture School is that "physical objects and other resources can be critical to human attempts to construct cultures, preserve memories, inspire wonder, embody aspirations, and ultimately understand -- in some way -- the place of individuals in the human and natural worlds."⁸¹ The Culture School recognizes that certain items are important to a group's sense of identity.⁸² Rather than protecting culturally significant items for the [*pg 1077] sake of the items themselves, the Culture School seeks to protect them for the benefit of the groups to which they are significant.⁸³

The central distinction between the Property School and the Culture School lies in what they are trying to protect and for whom they are protecting it. The Property School seeks to protect cultural products that are important in art, history, or science for the benefit of all humankind. The Culture School seeks to protect items for the benefit of the group from which they come.

B. Cultural Property in International Law

Although cultural property is often regarded as a new development in property theory,⁸⁴ it has had an established place in international law for more than half a century. The first treaty on cultural property, the Convention for the Protection of Cultural Property in the Event of Armed Conflict⁸⁵ (Hague 1954), was intended to protect cultural property, particularly monumental buildings, in times of war.⁸⁶

After establishing protection for cultural treasures during armed conflict, attention turned to the regulation of trafficking in cultural property. United Nations Education, Scientific and Cultural Organization Convention (UNESCO 1970) was created to oppose the "impoverishment of cultural heritage" through illicit trade in cultural property.⁸⁷ In UNESCO 1970, the states parties agreed to prevent the importation of cultural property traded contrary to the laws of the country of origin and to return illicit items found within their borders to their countries of origin.⁸⁸ The determination of what constituted cultural property and how to protect it was left up to the states, which responded in one of four ways:⁸⁹ blanket prohibitions on exchanges of [*pg 1078] cultural property,⁹⁰ prohibitions on the export of designated objects,⁹¹ export license regimes in which licenses are routinely granted,⁹² and leaving cultural property exportation unrestricted.⁹³

UNESCO 1970 arguably advances the Culture School goals of protecting cultural integrity because it leaves the determination of how to handle cultural property and the return of illicit items to their countries of origin up to each individual country. Critics of the treaty, however, have articulated arguments that echo Culture School concerns. UNESCO 1970 is criticized for its focus on the legitimacy of property rights to cultural property rather than concern for the integrity of the cultures from which the property comes.⁹⁴ Another criticism is that giving a state the power to designate what will be protected as cultural property will likely protect items significant to the group that controls the government, but it may not protect items significant to minority indigenous groups. Rather than allowing indigenous groups to decide which objects and places are important to them and thus deserve protection, the significance of those objects and places is judged by the government, on the basis of values external to the group for whose cultural integrity they are important.⁹⁵

Cultural property may be foreign to many, particularly to those in the Western legal tradition, but it is based on a shared desire to protect culturally significant items and enjoys an established position in international law.⁹⁶

III. A CULTURAL PROPERTY ARGUMENT FOR INDIGENOUS LAND RIGHTS

Indigenous peoples seeking protection for their traditional lands under international human rights conventions have had difficulty demonstrating that their traditional lands are in fact their property.⁹⁷ Because these difficulties arise from fundamental differences between indigenous practices and the dominant legal regime,⁹⁸ new "strategies [*pg 1079] for the protection of [traditional] land rights of indigenous peoples must be found."⁹⁹ Treating indigenous lands as cultural property might be just such a strategy.

The concept of cultural property has had an established place in international law for more than half a century.¹⁰⁰ The international law of cultural property, however, largely developed to control the transport of items of cultural significance.¹⁰¹ Thus far, international cultural property laws have focused on preventing foreigners from destroying cultural property¹⁰² and controlling the transfer of cultural property across borders,¹⁰³ leaving states to control domestic use as they see fit. The problem of indigenous land rights, however, springs from domestic governments' failure to protect indigenous groups' rights to the lands they occupy. It is the domestic treatment of indigenous lands that is of primary concern, but international cultural property treaties do not control domestic use.

Although existing international laws specific to cultural property cannot protect indigenous lands, the overarching concept of cultural property can and should inform the understanding of the "property" protections afforded by international human rights law. Because the meaning of "property" under international law is independent of its meaning under domestic laws,¹⁰⁴ and because that independent meaning remains unclear, cultural property concepts can be useful in developing that definition in a way beneficial to indigenous groups. By establishing that indigenous lands, like valuable works of art, should be protected under a regime of cultural property, indigenous peoples can bring their claims under the international human rights conventions protecting property rights.

The efficacy of such an argument, and the framing of it, depends on which conception of cultural property one adopts. Section A of this Part examines what that argument would look like from the Property School view; Section B examines it from the Culture School [*pg 1080] view. Section C introduces a case study to examine an indigenous land claim through three different lenses: traditional property law, the Property School, and the Culture School.

A. The Property School Applied to Indigenous Lands

The goals of the Property School, the preservation and dissemination of culturally significant items that are part of a common human heritage,¹⁰⁵ generally call for items to be expertly cared for and made available to all people. Cultural property is protected by the Property School because products of cultures, whether paintings, sculptures, manuscripts, or buildings, are a manifestation of the human experience, and as such are important in art, history, and science.

Indigenous lands themselves are not the product of culture and so do not fit within these goals. The land on which a group resides shapes the way in which that group adapts to its environment and may bear the marks of that group (such as fences erected between agricultural lands or plants and animals brought in by the group), but the land itself was there before the group arrived and will be there after the group leaves. It is part of the always changing environment in which a group resides, but it is not itself the product of that group. This seemingly prevents land from being cultural property under the Property School.

However, the way in which an indigenous group lives, such as its social organization and its adaptation to the environment -- the very culture that from which the property comes -- constitutes "an alternative construction of the world"¹⁰⁶ that can and should be shared. The group's access to and use of its traditional lands must be secured to protect that group and the way in which it lives. The Property School should consider culture, the most profound manifestation of the human experience, entitled to protection. As important as artifacts can be to a group's collective identity, the land that an indigenous group inhabits is more significant. Aside from historical and religious sites that may be located on indigenous lands, indigenous groups have adapted to their environment. Forcing relocation, or even simply a change in the use of the natural resources [*pg 1081] in an area, can have a dramatic impact on the people affected.¹⁰⁷ Protecting rights to traditional lands is fundamental to the protection of indigenous cultures themselves. In an indigenous land claim, then, the thing to be protected for posterity is not a painting or an artifact, but the indigenous group's way of life.

Although protection for indigenous lands under the Property School satisfies the goals of the Property School (the preservation and dissemination of those things that reflect the various ways in which people construct the world), it does so for reasons antithetical to the goals of the indigenous peoples seeking protection. The Property School seeks to protect cultural property as the common inheritance of humankind.¹⁰⁸ The concern is not with the group whose culture is expressed in it, but with the harm suffered by the rest of the world if it is deprived of the opportunity to enjoy and learn from the culture. In the case of indigenous lands, this creates a fundamental problem; the protection is not intended to benefit the indigenous group, but rather enriches the rest of the world by preserving the indigenous system. The indigenous group thus loses a measure of control. It is no longer the beneficial recipient of protection, but rather is protected merely for the benefit of others. Some indigenous peoples have expressed their intent to resist any "commercialization" and exploitation of their cultures by refusing to sell artifacts or license their symbols for other nonindigenous uses,¹⁰⁹ a sentiment that would likely be felt even more strongly if traditional lands and the way of life associated with those lands were protected purely for the benefit of others.

Applying Property School ideas to indigenous land claims could cause problems far beyond indignity: the autonomy of indigenous groups may also be threatened. Outside groups would be empowered to determine arbitrarily which lands are protected and to what extent.¹¹⁰

[*pg 1082]

Carried further, indigenous groups might be converted into "living museums,"¹¹¹ forced to keep their society artificially static for the benefit of those who wish to observe the culture.¹¹² Cultures are not static; they are constantly adapting to changes in the environment and reflecting decisions made by the people who create them.¹¹³ Forcing a society to artificially freeze itself at a moment in time so that it can be preserved and studied takes away the autonomy and control which securing indigenous land rights is intended to ensure.

Although the Property School approach can theoretically protect indigenous land rights, doing so would grant those rights to indigenous peoples only for the benefit of the rest of the world. The basic presumptions underlying this type of cultural property argument deny indigenous peoples the dignity and autonomy that legal rights to traditional land are intended to secure. Rightfully, indigenous peoples "are determined to be part of this world as viable communities -- indeed, as self-determining peoples -- and not to be relegated to histories of conquest or pre-modernity, or to be among the objects of tourists' voyeurism."¹¹⁴

B. The Culture School Applied to Indigenous Lands

The Culture School concerns itself with the integrity and well-being of the group: culturally significant items are protected as a means to that end.¹¹⁵ These goals are furthered by protecting indigenous lands because "rights to lands and resources are property rights that are prerequisites for the physical and cultural survival of indigenous communities."¹¹⁶

The principles underlying the Culture School are aligned with the desires of most indigenous peoples, making the application of the cultural property argument to land rights surprisingly straightforward. Under the Culture School, the indigenous peoples themselves, rather [*pg 1083] than all of humanity, are the beneficial recipients of the protection given to cultural property. Indigenous lands are the property of the indigenous peoples who occupy them not just because those indigenous people are there,¹¹⁷ but because that land has been important in shaping the group and is important to the group's past, present, and future identity.

C. The Awas Tingni: A Case Study

The Awas Tingni case is a real-world case study in the usefulness of applying cultural property concepts to indigenous land claims. This Section will examine that case, first by looking at how it would be resolved under traditional property law, then through the lenses of the Property and Culture Schools.

The Awas Tingni is an indigenous community on the Atlantic coast of Nicaragua.¹¹⁸ Nicaragua's formal legal regime for recognizing indigenous lands is one of the most progressive in the Americas.¹¹⁹ Despite this, every time that the leaders of the Awas Tingni group attempted to secure title to their lands, the government rejected their application on several grounds.¹²⁰ One of the reasons the Awas Tingni were not able to title their land was because the government was not satisfied with the group's ability to prove that it had been on that land as an independent entity at the time of colonization, a requirement for titling land to an indigenous group under Nicaraguan law.¹²¹ The government also objected to the size of the hunting grounds claimed (it was a fifteen-day walk across their hunting grounds)¹²² and to the fact that their hunting grounds overlapped with lands claimed by other indigenous groups.¹²³

Nicaragua argued that all untitled land was the property of the state.¹²⁴ The Nicaraguan government had a policy of leaving "corridors" of state-owned land between areas titled to indigenous [*pg 1084] groups for future infrastructure projects; the land the Awas Tingni claimed fell into such a corridor.¹²⁵ Relying on this policy and the untitled status of the land, the government issued a logging concession that included a portion of the area the Awas Tingni claimed as their traditional land.¹²⁶

After exhausting domestic legal remedies,¹²⁷ the Awas Tingni brought their case to the Inter-American Court for Human Rights (IACHR), part of the Organization of American States. The Awas Tingni filed their claim under Article 21 of the American Convention on Human Rights (American Convention), which contains a general provision for the protection of private property.¹²⁸ Members of the Awas Tingni community argued that the Nicaraguan government, in granting the logging concession, had deprived the community of its property.¹²⁹ Nicaragua argued that because the Awas Tingni had not secured title to the land and because the land was part of a "corridor" the government had set aside between lands claimed by other indigenous groups, the land belonged to the state. Therefore, the Awas Tingni's private property rights had not been violated.¹³⁰

When analyzed under the traditional Western property regime, the result likely favors Nicaragua. Although the definition of property under international law is independent of any domestic definitions, in a case in which an established domestic system allocating ownership of land already exists, that domestic law can be applied by the tribunal.¹³¹ The Awas Tingni did not have title to their land, thus they were not the legal owners under Nicaraguan law. Because the state of Nicaragua owned the land under domestic law, a tribunal applying traditional property principles would have affirmed the logging concession.

[*pg 1085]

Applying the Property School of cultural property, the logging concession would be invalidated and the Awas Tingni would receive continued access to the land. The Property School would protect the Awas Tingni's land not for the benefit of the Awas Tingni, but for the benefit conferred upon the rest of humanity by allowing the Awas Tingni to continue living on their land. These benefits include the opportunity to see how the Awas Tingni organize themselves, how they survive in their environment, and how they understand the world. This may or may not result in granting the Awas Tingni legal ownership of the land. For example, instead of granting the Awas Tingni title, the government could continue to own the land, but with restrictions placed on its ability to dispose of the land or the resources on it.¹³² In a sense, the government would be holding the land in trust for all humanity to ensure the survival of the Awas Tingni. The government, then, might have the power to regulate what the Awas Tingni could do with the land in the future. Should the Awas Tingni decide to assimilate into the dominant culture, the government could have the power to regulate how they use the land, effectively preventing the assimilation.¹³³

The Awas Tingni, however, sought ownership of the land and the autonomy that comes with such ownership. Their access to the land is secured by the Property School, but not their autonomy over it. Under the Property School, the Awas Tingni end up with but a partial victory, and for reasons that might ultimately do more harm than good.

Applying Culture School conceptions of cultural property, the Awas Tingni lands would be recognized as cultural property because of their importance to the group. The community's culture developed in response to the environment, and its sacred places are on that land. Indeed, the group's very way of life and survival as a distinct group would be imperiled if it were forced to leave its traditional lands or if those lands were fundamentally changed, such as by the logging of the forest. Because of its cultural importance to the Awas Tingni, the land must be regarded as their property, accompanied by formal ownership of the land and all the rights that go with it, including the [*pg 1086] right to determine how the land will be used. This is the exact result that the Awas Tingni sought when they brought their case to the IACHR. Furthermore, the result is reached for the reason the Awas Tingni wanted title to the land: to preserve their way of life for their own benefit.

The IACHR employed arguments reminiscent of the Culture School in holding that the Awas Tingni did have a property right in the land that was protected by the American Convention,¹³⁴ although it did not make the cultural property argument in so many words. Although the Awas Tingni did not have official title to the lands they occupied, they were entitled to ownership of the lands due in part to the land's importance to the group's cultural legacy and the land's role in helping the Awas Tingni maintain itself in future generations.¹³⁵ The court held that the protection of property in Article 21 of the American Convention¹³⁶ includes protection of the communal property of indigenous groups, including lands, waters, and forests traditionally belonging to the group.¹³⁷ Such communal property is inalienable and inextinguishable.¹³⁸ In a resounding victory for indigenous communities, the IACHR made clear that in most cases mere possession by an indigenous group should be enough for official recognition and registration of the land.¹³⁹ Given these considerations, the court determined that the members of the Awas Tingni community had communal property rights to the lands they inhabited. Accordingly, the court ordered Nicaragua to pay damages¹⁴⁰ to the Awas Tingni and to establish a system to demarcate communal lands that protected land and natural resource rights.¹⁴¹

For several reasons, the Awas Tingni decision was a landmark for indigenous groups. First, the IACHR interpreted Article 21 in a way that "avoid[ed] the discrimination of the past and, rather than excluding indigenous modalities of property, it embrace[d] them, [*pg 1087] marking a new path for understanding the rights and status of the world's indigenous peoples."¹⁴² Second, "Awas Tingni prove[d] that well-settled legal principles can give way to indigenous people's fight for survival, even when human rights and Western property regimes conflict."¹⁴³ The IACHR did not intentionally apply Culture School principles, but its reasoning nonetheless reflected those principles and demonstrated that they can work to both establish property rights and support the goals of the indigenous movement.

This case study illustrates that employing traditional models of property and cultural property models to indigenous land claims can have opposite results. Furthermore, whether cultural property ideas are applied from the Property School perspective or the Culture School perspective also can affect the long-term outcome. In the short term, both schools protected the Awas Tingni's rights to use and control its traditional lands; however, the differences in the goals of the two schools resulted in long-term differences as to who benefited from protection and how. The Culture School produced results that aligned with the goals of indigenous peoples because they were the beneficial recipients of the protection and because the autonomy and control that they sought over indigenous lands was secured.

CONCLUSION

The world's indigenous peoples have long struggled to maintain their separate existence. The fight for access to their traditional lands is a central element of that struggle; it is a fight that must be won to ensure their continued economic, social, cultural, and even physical survival. In the last few decades, a growing number of nonindigenous people from around the world have stood alongside indigenous people in this struggle. Although this assistance has made a world of difference for some indigenous groups, the inability of Western legal concepts to deal with the problems of indigenous peoples, both under domestic and international law, has crippled attempts to secure indigenous land rights.

The primary difficulty for indigenous groups has been in establishing property rights in their land that would trigger the property rights protection provisions in international human rights treaties. Applying the concept of cultural property to indigenous [*pg 1088] lands can help indigenous groups prove a property interest in their lands and work within these treaties.

When done under the Culture School of cultural property, treating indigenous lands as cultural property also helps focus the discussion on what indigenous peoples are really fighting for -- cultural survival. Framing indigenous land claims in Culture School arguments would not only establish a cognizable property interest and trigger property rights protections, but it would also refocus the debate surrounding indigenous land claims on the issue most important to indigenous groups -- securing control over their own way of life.

FOOTNOTES