If we are speaking in general terms, I think its more accurate to say that government records and community property can not be alienated without going through an official process for getting rid of the property, and that the person or institution involved must have the authority to alienate the property. 
 
For example, many governments have a process for disposing of surplus property, or in the course of routine business give printed materials and documents to the public. In the case of Native American cultural patrimony under NAGPRA, good title might be conveyed if the seller/donor had the authority to alienate community property under Native American law (as it existed at the time the object was alienated).
 
So it depends on the status of the seller and whether they followed the law in force at the time. Proving title with documentation alone would be difficult for older collections, as many of these transactions involving community property (though considered totally legal and ethical at the time) were not documented, poorly documented, or the documentation has been lost or destroyed.  
 
I'm not a lawyer, so my opinion might not be worth much. I'm interested in hearing other opinions too.
 
Steve Henrikson
-----Original Message-----
From: Museum discussion list [mailto:[log in to unmask]]On Behalf Of Claudia J. Nicholson
Sent: Wednesday, November 09, 2005 5:21 AM
To: [log in to unmask]
Subject: On replevin and cultural property

I think that Deb’s mention of the North Carolina bill of rights case raises a couple of issues that are at the core of our discussion here:  in the U.S., first, thieves can never convey good title--doesn’t matter how many years pass.  Getting the thing back is another matter (see the Georgia O’Keefe case), but there is always a cloud on the title.  And equally important in this case is the idea that government records (like a copy of the Bill of Rights sent to each state) and community property can never be alienated from its government or community.  This is a principle laid out nicely in the Native American Graves Protection and Repatriation Act (NAGPRA) and other state and federal law. 

 

Admittedly, this has required many  museums to rethink their acquisitions policies, but this is not a bad thing!

 

Claudia

 

Claudia J. Nicholson

Executive Director

North Star Museum of Boy Scouting and Girl Scouting

651-748-2880

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www.nssm.org

 

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