1. SOVEREIGNTY AND PROPERTY

As a starting point, Brown offers a powerful objection to “sovereignty” and “property” as bases for indigenous peoples' cultural property claims, pointing out that as a practical matter tribal assertions of sovereignty or ownership over cultural resources will do little to “insulate a community from every outside influence” or “assert control over public discussion” of Indian culture and traditions by outsiders. At the outset, we wish to clarify that many of the indigenous property claims we discuss within our article stem not from attempts to control public discussion, but from a desire to restore indigenous cultural properties to a comparable baseline of protections that many other social groups or individual property owners already enjoy. Presumably, Brown would not contest this point. He does, however, express discomfort with claims based on indigenous peoples' status as such, questioning the workability of property claims based on the nuanced and complex aspects of indigenous identity. To the extent that this may be an issue of lawyers and anthropologists talking past one another, we are pleased to clarify some legal concepts.

As a matter of positive law, of course, indigenous groups have historically been treated as special subjects of concern in both American domestic and international human rights law. As the works of scholars like Will Kymlicka and S. James Anaya have detailed, their mistreatment has been vastly different in both degree and kind than that even of other colonized groups, justifying a particularized design and trajectory of legal entitlements.Footnote ¹⁶ In this sense, we would situate IDP within these mainstream, accepted legal approaches, both domestically and internationally, that seek to extend basic notions of equality and nondiscrimination to indigenous peoples.Footnote ¹⁷

In the United States, Indian people and their lawyers often describe tribes' legal status through the language of sovereignty, a term that strikes a discordant note with Brown, who says that we, like most legal scholars, “fail to ponder sovereignty's inherent limits.” Admittedly, sovereignty is a deeply contested term, which has inspired far more scrutiny and criticism than can be conveyed here.Footnote ¹⁸ But, quite simply, despite roots in the historical image of a European monarch's absolute power over his subjects, current international, domestic, and indigenous legal practice treats sovereignty as connoting a sphere of governing authority, exercised in relationship with other states, peoples, and citizens.Footnote ¹⁹ In the United States, there are three sovereigns—the federal, state, and tribal governments—whose concomitant presence and formal legal status give rise to a set of necessarily limited powers.Footnote ²⁰

Thus, we use the language of sovereignty, not because we (mis)understand it as unlimited and unchecked, but because it accurately communicates the political status of American Indian tribes in relation to other governments within the U.S. legal framework. Undoubtedly, there exists some degree of contradiction in American Indian tribes' status as “domestic dependent nations,” given that it simultaneously characterizes Indian nations as both dependent and independent vis-à-vis the nation-state. As Indian law scholarship explains, however, these seemingly contradictory positions are reconciled in the U.S. context by understanding that tribes' “dependent” status obligates the federal government to act as a fiduciary or trustee to tribes, largely to protect and respect their independent status, in the form of nationhood and self-governance.Footnote ²¹ In the international context—including as contained the UN Declaration on the Rights of Indigenous PeoplesFootnote ²²—this space of authority is described as a right of self-determination rather than sovereignty, but both terms underscore the call for indigenous peoples' rights to autonomy over their cultural resources.Footnote ²³ Accordingly, we reiterate IDP's appreciation of non-U.S. indigenous as well as nonindigenous cultural property claims and emphasize that our work does not, either conceptually or practically, preclude the possibility that other peoples can—and, rightfully, should—pursue their own claims for protection of their cultural property.

Clarification of property is also necessary here, as we respectfully suggest that Brown persists in equating property with ownershipFootnote ²⁴—a characterization that misses one of the central points of IDP (property interests are broader than ownership interests) and the significant body of property law, theory, and practice supporting that point. While U.S. contemporary property laws are influenced by the eighteenth-century Anglo-American ideal of owners' right to do whatever they want with their own land or other resources, this classic conception has been thoroughly debunked on both descriptive and normative grounds by legal scholars going back to the 1930s.Footnote ²⁵ Today, a basic tenet of property law is that the proverbial bundle of rights can be disaggregated with title holders and nontitle holders having various rights and responsibilities to the property. Dozens of generic property law arrangements—landlord–tenant, copyright registrant–public, landowner–easement holder—illustrate the limited nature of property interests among participants in our system. Thus, we begin with the premise that all property rights are limited, to some extent, by competing interests, and that judgments about where to place the limits should reflect societal norms and values. So, from our perspective, assertions of cultural property rights will occasionally, but rarely, vest indigenous peoples with the absolute powers of control, exclusion, or alienation that Brown seems to fear.

2. STEWARDSHIP AND GOVERNANCE

With some of our foundational terms and principles clarified, we turn to Brown's discussion of our stewardship model. He writes that our cultural property analysis identifies “no limits to the proposed stewardship rights of indigenous peoples over cultural productions, knowledge, and biological inheritance that they insist are theirs alone.”Footnote ²⁶ In his view, we fail to address when, if ever, indigenous claims should be “subordinated to [the claims of] the global community?” Brown is not the only scholar to propound what we see as a limiting principles criticism of IDP. Expressing skepticism about whether one can become a steward without being so-designated by the owner, Kal Raustiala and Stephen Munzer further query:

Like Brown, Raustiala and Munzer seem to worry that the “limitless” nature of indigenous claims to cultural property would be difficult to administer and threaten the legitimate interests of others in the same resource. In sacred sites litigation, courts have similarly wondered aloud if a tribe's opposition to development in a particular area might actually represent broader Indian attempts to regain “rather spacious tracts of public property.”Footnote ²⁸ Litigating parties, with some sympathy from the courts, have also expressed fears that Indians might make a religious claim to the Lincoln MemorialFootnote ²⁹ or the color of government file cabinets.Footnote ³⁰

We hear in all of these critiques a plaintive cry for limits—theoretical, doctrinal, and practical—to indigenous peoples' cultural property claims. We make two preliminary responses to this concern. First, it is important to consider the operative legal context under which our stewardship claims are offered. Many areas of cultural property protection originate from baselines of zero legal protection for indigenous peoples' cultural resources.Footnote ³¹ Returning to the sacred sites cases, for example, under current U.S. Supreme Court precedent, the First Amendment has offered no protection for American Indian sacred sites located on federal public lands.Footnote ³² Consider also the Native American Graves Protection and Repatriation Act (NAGPRA), which, among other things, provides tribes with the opportunity to consult on projects that will disturb burial sites on federal and tribal lands. NAGPRA was enacted, not to afford indigenous peoples special rights to graves protection, but because Congress acknowledged that state cemetery protection laws had not historically applied to—or protected—Indian cemeteries.Footnote ³³

Concomitantly, we point out that to the extent that the law has evolved through statutory and administrative reforms, American Indians are still often afforded only a procedural right to participate in consultations about the treatment of their cultural property, but seldom possess any substantive right of access, title, maintenance, or representation. Consider, for example, (1) the National Collegiate Athletic Association (NCAA) program in which universities are encouraged to seek tribal consent and participation vis-à-vis controversial tribal mascot use;Footnote ³⁴ (2) the National Historic Preservation Act's (NHPA's) requirement that public land use agencies consult, on a government-to-government basis, with Indian nations on federal undertakings that may adversely affect sacred sites;Footnote ³⁵ and (3) NAGPRA's provisions that federally funded museums must inventory their collections of indigenous human remains and associated funerary objects, and then notify and work with tribes to facilitate their repatriation.Footnote ³⁶ These are all extremely modest legal rights that, in our view, do not scream for limits.

Second, we do agree that, in some instances, indigenous peoples' claims may need to accommodate others' interests in science, speech, or invention. This is fully consistent with our theoretical and doctrinal approach to property and sovereignty in which the legal system should acknowledge stakeholders with a legitimate claim to certain entitlements. However, to assert that indigenous groups might legitimately—pursuant to our theory—appoint themselves stewards of the Lincoln Memorial demonstrates both a factual and legal disconnect with the way stewardship works in indigenous communities. The duty to steward cultural resources originates in tribal customary law, which articulates the relationship between the people and the world around them.Footnote ³⁷ In most instances, tribal customary law dates back to the tribe's very creation story, identifying certain resources as critical to the community and thereby necessitating human care. Because tribal law on cultural resources is ancient, predating the arrival of Anglo-American legal principles, its stewardship principles are not dependent on Anglo-American notions of property in which the owner usually has the power to designate someone else as the steward of his property. And yet, as we argued in IDP, we believe that Anglo-American property law is sufficiently flexible and capacious to encompass an indigenous stewardship model.Footnote ³⁸

Both contemporary cases and recent scholarship have begun to demonstrate how tribal law and custom place explicit limits on an indigenous community's rights and duties to cultural resources.Footnote ³⁹ In Navajo Nation v. United States Forest Service, for example, several tribes sued under the Religious Freedom Restoration Act (RFRA) to stop the desecration of the San Francisco Peaks, a holy site where the Forest Service had approved the use of wastewater in snowmaking for a private ski resort. The en banc Ninth Circuit, relying on the Supreme Court's decision in Lyng v. Northwest Cemetery Protective Association,Footnote ⁴⁰ rejected the tribes' arguments, in part because it could see no limits to the Indians' claims. Surely, in the majority's viewpoint, the government could not function if the Indians were free to designate any mountain on the public lands to be “sacred” and thus require federal accommodation under federal statutes. Dissenting Judge Fletcher pointed out the fallacy of this argument, noting:

Then Judge Fletcher described in great detail the tribal custom associated with San Francisco Peaks, including the story of the Navajo deity Changing Woman, who resided there at the time of creation, and the contemporary religious practices involving water and plants that would be desecrated by the proposed use of waste material. The Navajo creation story—and the legal and cultural responsibilities it sets forth—is told through a specific set of locations, events, and values.Footnote ⁴² Such customary law provides no basis for the Navajo people to claim themselves stewards of a limitless number of mountains or other resources across the southwest. Through this analysis, Judge Fletcher was able to discern a “substantial burden” on Navajo (and Hopi) religious practices that did not implicate the entire land holdings of the federal government.Footnote ⁴³

Judge Fletcher's opinion, albeit a dissenting one, thus provides a practical view of tribal customary law as providing discernible limits on Indian cultural property claims. It is one example that may respond to Brown's worry that IDP has “difficult[y]” in “getting from splendid abstraction to real-world complexity.” That said, we agree that IDP is primarily a theoretical work. In articulating a theory of property based in conceptions of peoplehood and stewardship, we did not, for example, propose model legislation to modify or extend existing property rights (though we have made such suggestions elsewhere).Footnote ⁴⁴ Given the scope of subject matters, geographies, and peoples we are talking about—everything from botanical claims in Peru to sports mascots in Illinois—it would be extremely difficult to propound a particularized set of formulations to determine where such limits should lie in every conceivable case.

The bridge, in our view, between theory and practice relies on engaging with a governance approach to cultural property disputes that does support real-world solutions, just as Judge Fletcher's dissent suggested.Footnote ⁴⁵ Indeed, an empowered governance approach to cultural property disputes seems to be gaining currency across academic disciplines and around the world. Since we wrote IDP, for example, Arizona State University (ASU) entered into a settlement with the Havasupai Indian tribe to “remedy the wrong that was done” when an ASU geneticist, having obtained Havasupai blood samples for diabetes research, also used the samples in research on Havasupai mental health and tribal origins without the donors' consent.Footnote ⁴⁶ The geneticist, to this day, maintains that she “was doing good science.”Footnote ⁴⁷ But many institutions and researchers understand that such studies, no matter how important from a scientific perspective, should only occur with meaningful indigenous consent. For example, the Canadian Institutes of Health Research has recently promulgated guidelines in which researchers working with aboriginal communities should obtain the community's consent, undertake research of benefit to the community, and translate resulting publications into the community's language.Footnote ⁴⁸ This would seem to be a governance approach in which indigenous peoples are empowered to negotiate the terms of the scientific research that draws resources from their communities.

More generally, groups such as the United Nations World Intellectual Property Organization (WIPO) are working diligently to find ways both to protect indigenous peoples' intangible culture and to balance critical interests of creativity and free speech.Footnote ⁴⁹ These are formidable projects, indeed. As Rosemary Coombe has suggested, it may take more conversations like this one between scholars from divergent disciplines to address practical issues of cultural property governance.Footnote ⁵⁰

3. COMMODIFICATION AND ITS DISCONTENTS

In the third part of his response, Brown expresses a great deal of discomfort with the idea of commodification generally. Brown appears to be rightly concerned with the “direction of commodifying every aspect of human identity,” as he poses the provocative question: “is it possible to define culture as property without commodifying it?”Footnote ⁵¹ In support of his critique, Brown discusses a book by John and Jean Comaroff, Ethnicity, Inc., which decries the association of property with identity. “‘Identity,’ the Comaroffs declare (29), ‘is increasingly claimed as property by its living heirs, who proceed to manage it by palpably corporate means: to brand it and sell it, even to anthropologists, in self-consciously consumable forms’ [emphasis in original].”Footnote ⁵² This is admittedly a complicated observation, which Brown advances by suggesting that it is quite difficult to pursue the goals of propertization without some form of commodification.

At the outset, we note that Brown's concerns about commodification focus almost exclusively on intangible cultural property, a category that we concede is incredibly complex. Yet, we reiterate here that those claims compose only one (albeit important) aspect of achieving an overall understanding of the protection of cultural property. In our view, many of the most salient issues regarding cultural properties—including native peoples' efforts to protect sacred sites, hold on to their ancestral territory, and repatriate and rebury ancestors and funerary objects currently held en masse in museums—do not involve commodification.Footnote ⁵³ Indeed, many of these claims concern nonfungible properties that, by definition and as a matter of tribal law, would fall within a protected sphere of inalienability.Footnote ⁵⁴ Here, we think it is important to distinguish between the property law concepts of title (classically defined as evidence of one's ownership interest, including the right to alienate) and custody (connoting guardianship or a duty of care). While the issue of title certainly connects to Brown's skepticism regarding commodification, much of what we are concerned with regarding tangible property (funerary remains, sacred sites, etc.) involves the stewardship values inculcated by custody over inalienable goods that elide Brown's concerns about commodification. Indeed, since so much of our commentary gravitates toward the goal of custody rather than title, it is important to observe, at the outset, that protection of some cultural objects does not always lead to market-based solutions; in fact, quite the opposite.

Nevertheless, here and elsewhere Brown expresses his deep concern over the “crisis of the public domain” and, from his perspective, our failure to resolve this issue of real concern.Footnote ⁵⁵ Here, we sympathize with Brown's desire to preserve the public domain, but we part ways with Brown's suggestion that protecting intangible aspects of indigenous culture is at odds with this goal. Three arguments may be made to respond to Brown's quite understandable concerns, however. First, many ethnicities of all races, colors, nationalities, and tribal and nontribal affiliations commodify different aspects of their identities by selling cultural objects, propertizing aspects of their culture, or holding cultural events, either to develop cultural awareness or monetary gain.Footnote ⁵⁶ Many nonethnic groups do the same—universities, sports teams, labor unions, political movements, and the like.Footnote ⁵⁷ Brown's expression of concern, we respectfully suggest, fails to adequately capture precisely why indigenous groups should be singled out for more critical attention than any other ethnic or nonethnic group that may pursue the same goals of commodifying aspects of their cultural identity.

Consider, for example, Brown's point that the protection of Navajo rug designs is impractical. The issue, for Brown, it seems, is not that there cannot be intellectual property protection in rug designs, but that indigenous peoples have somehow missed—and are trying to perhaps overstate—their rights to commodify. If, for example, the Navajo had trademarked symbols and used them in commerce, under the federal Lanham Act they could continue to be used in perpetuity, presumably without opposition by Brown and his counterparts, even though this, too, would shrink the public domain. To this end, Brown offers the solution of copyrighting Navajo rug designs for infringement (plus a fair trade solution to prevent misappropriation), and we heartily applaud this as a potential solution, though we note that this, too, fails to resolve Brown's concerns regarding the public domain.

Second, if indigenous groups and tribes are somehow less able to commodify elements of their cultures—whether it be traditional knowledge, artifacts, or other types of fungible goods—then it paves the way for what we believe is already taking place: a significant scale of appropriation without remuneration or attribution.Footnote ⁵⁸ (One only need to look at our introduction to this essay to see a poignant example). To be sure, Brown is sensitive to these concerns, a point that intersects precisely with his suggestion of increased enforcement of intellectual property interests, complemented by a fair trade regime that protects native interests. At the same time, however, Brown suggests that his ultimate goal is to expand the public domain, making information more “free.” Yet, we respectfully observe that many of his illustrations refer to indigenous intangible cultural property that is currently commodified—rarely by or for the benefit of the native peoples that may have participated, willingly or unwillingly, in its creation. Brown's examples—such as Native American mascots (protected by federal trademark law to the monetary benefit of the universities who use them) and traditional ethnobotanical knowledge (protected by patent law to the benefit of the patent holder, typically corporations or research universities)—do not currently exist in the public domain, free for the taking. They are ardently protected by intellectual property rights holders and backed by American courts.Footnote ⁵⁹ In short, if indigenous peoples cannot commodify their culture, some other nonindigenous entrepreneur will surely take their place, risking not only the quality of the goods that may be produced but also potentially diluting the goods' association with tribal origins, and concomitantly denying indigenous peoples the opportunity to participate in the profits.

Third, and finally, it is important to separate out discomforts that surround commodification (with which we share some of Brown's hesitation) from Brown's other arguments concerning identity. He contends, using the example of Indian gaming, that cultural commodification can also add to the formation and reification of political differences based on identity-based categories, pointing out stories of individuals facing disenfranchisement from their tribal communities as a result of new membership restrictions. While we agree that such instances might be problematic, we think it is important to note that the problem of membership reclassifications is not necessarily brought about by protecting cultural property.Footnote ⁶⁰ Though capitalism and commodity certainly may bring about undesirable results at times, the contention that commodification leads to membership disputes is misguided; rather, while commodification may influence such identity classifications in some instances, it certainly should not shoulder the blame exclusively.