Document Type

Article

Publication Date

2007

Abstract

Many current cultural disputes sound in the legal language and logic of discrimination or hate speech. The focus of this essay is on the claims made explicitly or implicitly on the basis of cultural property. The problem with using ideas of cultural property to resolve cultural disputes is that cultural property encourages an anemic theory of culture so that it can make sense as a form of property. Cultural property is a paradox because it places special value and legal protection on cultural products and artifacts but does so based on a sanitized and domesticated view of cultural production and identity. Within the logic of cultural property, each group possesses and controls--or ought to control--its own culture. This view of cultural property suggests a preservationist stance toward culture. This essay argues against both of these assumptions and for a view of culture that takes account of its dynamisms, appropriations, hybridizations, and contaminations. As a corrective to the paradoxes of cultural property, this essay offers a counternarrative of cultural fusion and hybridity. These themes are illustrated with an extended example of the regulation of Native American mascots generally and the invention of one such mascot--Chief Illiniwek--specifically.

Publication Citation

107 Colum. L. Rev. 2004-2046 (2007)