First, he makes a major blunder by confusing cultural property with cultural heritage. He mistakenly argues that nations of origin view antiquities as cultural property. Not so, in fact most would use the term heritage, or an approximation of that in their native language. I think cultural property is a narrower subset of a larger body of what can be called cultural heritage.
Second, he roundly criticizes the Native American Graves Protection and Repatriation Act (NAGPRA):
I find it unlikely human remains were legitimately purchased, but perhaps they were. He ignores perhaps the most important aspect of NAGPRA. It facilitated a helpful dialogue between museums and tribes to create workable relationships which can help undo some of the mistreatment of the past, an important benefit Rothstein seems unaware of.In the United States, for example, the 1990 Native American Graves Protection and Repatriation Act required every museum getting public funds to survey its collections; identify Indian remains and funerary, sacred and other objects; and consult with Indian tribes and ”repatriate” the artifacts if requested. Such objects may have been legitimately purchased a century ago from the tribes or have no issue clouding their provenance, but claims of ordinary property give way before claims of cultural property. The grievous sins of the past are now being repaid with a vengeance. And the risks of repatriation and the requirements of tribal consultation have led to promotional, uninformative and self-indulgent themes in exhibitions about American Indians.
Near the end, Rothstein argues:
Seen in this light the very notion of cultural property is narrow and flawed. It is hardly, as Unesco asserted, “one of the basic elements of civilization.” It illuminates neither the particular culture involved nor its relationship to a current political entity. It may be useful as a metaphor, but it has been more commonly used to consolidate cultural bureaucracies and state control.
But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.
These Western "encyclopedic" museums are formed on the noblest of intentions. However they have been associated and party to illegal activity. Moreover, the rights these institutions often assert to these objects is based on the legal notion of property. If heritage become the exclusive paradigm, that would remove the argument justifying the current location of many of these objects in New York, Paris, London, Berlin, etc.
I suppose we have to forgive the author for an ignorance of the law, but "illicit" typically refers to illegal excavation or illegal export. Not the kind of repatriation he is describing. The key now is how these institutions can adapt and begin to work with nations of origin, not continue an acrimonious debate