SOVEREIGNTY-THINKING AND THE CHIMERA OF CULTURAL AUTONOMY

A pivotal move that shapes Carpenter et al.'s analysis is outright dismissal of efforts to strike a balance between concern for the legitimate interests of indigenous peoples and the global campaign to defend a shrinking public domain from privatization. Their underlying assumption is that because indigenous cultural productions are inadequately protected today, indigenous peoples have no stake in defending the global commons. For them, the public domain is at best irrelevant; at worst, it is a source of injustice because existing law defines indigenous cultures as largely situated in the public domain owing to their antiquity and “folkloric” nature.Footnote ⁴

By excluding concern for the public domain from their analysis, however, Carpenter et al. turn their back on an important pathway to social justice, one whose benefits could extend beyond the indigenous world. Cultural appropriation would become far less attractive if the intellectual property rights currently available to non-indigenous actors, especially those in industry, were subjected to aggressive challenge and ultimately rolled back. This is already occurring in countries such as India, where newly created traditional knowledge databases have been used to invalidate industrial patents that parasitize folk traditions. Vigorous defense of the tattered remnants of the public domain, in other words, should not be seen as incompatible with the movement to protect indigenous cultural expressions from exploitation by outsiders.

Recognition of the links between indigenous rights in heritage and parallel debates about the future of the public domain requires what I have elsewhere called an “ecological” approach, one that moves constantly between specific problems and the larger whole.Footnote ⁵ Unfortunately, much recent work on strategies for defending indigenous heritage rejects this double vision. Legal scholarship in the United States, in particular, is so fixated on the doctrine of American Indian sovereignty that it persistently fails to ponder sovereignty's inherent limits and the extent to which dogmatic adherence to the sovereignty doctrine can be problematic rather than helpful.Footnote ⁶ Even the most resilient political sovereignty cannot insulate a community from every outside influence. Familiar examples include the effects of global climate change or the intrusion of pollutants from beyond a nation's borders.

Analogies between culture and the problem of environmental contamination are not as implausible as they might seem at first glance. Molecules are often mobile, combining readily with air and water, thereby incorporating themselves into living things. So, too, do elements of culture—memes, if you like—which subdivide and spread via global media and informal personal contacts in ways that are not readily subject to collective control. (Skeptics should ponder for a moment the infiltration of foreign words into spoken French despite the vigorous efforts of the Académie Française to maintain the language's purity.) When Carpenter et al. insist that the doctrine of sovereignty entitles Native Americans to “legal protection of, and autonomy over, their cultural resources,”Footnote ⁷ they are trafficking in a slogan rather than a policy that stands a reasonable chance of implementation. No society can accurately be said to enjoy “autonomy” over its cultural resources, although communities do have a modest ability to encourage and defend elements of culture that they value highly. The limits of this control are evident in the declining use of many Native American languages despite the unstinting efforts of tribal governments to preserve them.

Not only do Carpenter et al. overstate the level of conscious control that any community has over its heritage, their persistent focus on “culture” in the broadest sense renders the focus of this supposed right of ownership frustratingly vague. Few will contest the idea that cultural communities have a legitimate stewardship role with regard to their art styles, oral traditions, or religious rites. But how widely do such rights extend in time and space? Must we also conclude that a particular group “owns” bifurcate-merging kinship terminology, agglutinative verbs, or the custom of pointing with the lips rather than the index finger? It seems unlikely, although the impreciseness of Carpenter et al.'s assertions makes it difficult to say.Footnote ⁸

Symptomatic of the trouble that Carpenter et al. get into because of their vaguely defined and expansive notions of culture and cultural property is their approach to the mascot controversyFootnote ⁹—that is, the formerly widespread, now thankfully declining, use of Native American names and images by sports teams throughout the United States. There is no question that a handful of mascots represent the appropriation of a specific tribal name with which the appropriator has no plausible connection. Use of these names violates widely accepted principles of the right of personality (individual or collective) and should therefore be prohibited on those grounds. Most mascots, however, are abstract invocations of native society in general (“braves” or “warriors” or “chiefs”) that have little to do with cultural property and everything to do with offensive, stereotyped representations of a category of people. Yet Carpenter et al. propose to treat this as a property issue when they declare that “indigenous peoples should have some power to steward the cultural images that define them in the eyes of the dominant society.”Footnote ¹⁰

Insistence that a people owns the “cultural images that define them,” presumably even when they are not the authors of those images, stretches the most elastic notions of political sovereignty and cultural property beyond the breaking point. By that same logic, any community could assert control over public discussion of its traditions or actions on the grounds that such representations are its property. This totalizing approach to cultural property, which one cannot imagine being put into practice by any nation with even a tepid commitment to free expression, would instantly put historians, anthropologists, sociologists, and even writers of fiction out of business unless they agreed to limit their observations to the cultural community of which they are a member.

An alternative interpretation that could follow from Carpenter et al.'s approach is that American Indians constitute a de facto brand, the unauthorized use of which must be considered an illegal infringement. But this reduces fundamental issues of human dignity to a banal dispute over commercial representation, an argument that Carpenter et al. would doubtless reject.

A curious feature of their analysis—and, I believe, an inevitable result of sovereignty-thinking—is that it specifies no limits to the proposed stewardship rights of indigenous peoples over cultural productions, knowledge, and biological inheritance that they insist are theirs alone. Nevertheless, the global community might plausibly assert a legitimate interest in a range of resources routinely claimed by indigenous rights activists. Perhaps the most controversial of these is information embedded in human remains of great antiquity. Along with most anthropologists, I fully support the repatriation of human remains that have confirmed links to indigenous communities who seek their return, and I offer no defense for the shameful removal of burials from Native communities in the past. The situation becomes ethically murky, however, when we consider the status of remains dating back thousands of years. A given community might insist that these are their ancestors, but whose standard of proof should prevail? How can we begin to balance local claims of stewardship against the potential value of such remains to science and, given the direction of contemporary medical research, to the improvement of human health on a global scale?

Similar problems arise when considering the potential value to humanity of traditional ethnobotanical knowledge. Unfortunately, bioprospecting now evokes so much outrage—often justified, occasionally misplaced—that it is nearly impossible to discuss it in a dispassionate way. I would welcome the authors' thoughts on whether there are circumstances in which indigenous stewardship claims need to be subordinated to those of the global community in much the same way that private ownership of great works of art is subordinated to global standards of heritage protection.Footnote ¹¹

Let me make one thing clear: I am not challenging the view that sovereignty needs to be considered when envisioning effective mechanisms for the protection of both tangible and intangible cultural heritage. My point is that political sovereignty, even where successfully realized, has profound limitations when it comes to the management of heritage. In many cases, sovereignty-thinking and its conceptual baggage hinder the search for creative, pragmatic solutions to the unwanted circulation of traditional cultural expressions.

DIFFICULTIES OF GETTING FROM SPLENDID ABSTRACTION TO REAL-WORLD COMPLEXITY

A simple case study will serve to demonstrate why Carpenter et al.'s declaration that a people owns its culture is devilishly hard to move from theory to practice, especially given the way they have framed the relevant issues. The authors note in a brief asideFootnote ¹² that weavers of the Navajo Nation are distressed by the copying of specific Navajo rug patterns by non-Navajo manufacturers, as well as by the proliferation of more generic “Southwestern” designs. Published prices for rugs made by prominent Navajo weavers suggest that the market for weavings of the highest quality is reasonably stable; in contrast, rugs farther down the quality spectrum appear to be losing market share to Navajo-style rugs imported from abroad. The Navajo Nation has declared traditional rug designs to be sacred, thus attributing injury to the production of fake rugs that goes far beyond the narrowly economic. So let us follow Carpenter et al.'s lead by identifying the Navajo rug as a form of group property over which the Navajo people should be seen to exercise collective stewardship.Footnote ¹³

To protect something, we must first identify it and specify its boundaries. An immediate problem is that Navajo designs change over time. Each weaver brings an element of personal creativity to her work, and the combination of local micro-traditions and individual creativity crystallize in identifiable regional styles. So what exactly is “the Navajo rug”? Identifying Navajo rugs from the past would be a fairly straightforward matter, and it might be possible to prohibit unauthorized commercial reproduction of those rugs, a problem that goes back at least a century.Footnote ¹⁴ But the riddle remains: How best to protect today's Navajo designs and those that may emerge in the future? Should the Navajo Nation be given control over a specific palette of colors, shapes, and thread counts? In lieu of an attempt to stipulate the formal properties shared by all authentic Navajo rugs, might the federal government be obliged to empanel a group of latter-day Potter Stewarts who although unable to define the Navajo rug would be trusted to know it when they see it?Footnote ¹⁵ Given the scale of the economic crisis currently confronted by the Navajo people and the U.S. government, one cannot imagine that legislators would be willing to institute such expensive and cumbersome regulation. And in the unlikely event that such a regulatory regime were implemented, it would doubtless inspire a tsunami of litigation from manufacturers and artists, including weavers from other indigenous groups, arguing that the law infringes upon their creative rights or cultural patrimony.Footnote ¹⁶

There is an alternative approach that builds on existing law while acknowledging the harsh realities of industrial production. Navajo weavers have every reason to be proud of their artistic traditions and angered by those who try to pass off fake Navajo rugs as the real thing. If any specific design is reproduced without the artist's permission, tribal legal counsel and attorneys committed to the protection of Native American rights should sue the perpetrators for copyright infringement. Vendors who falsely claim that rugs are made by Navajos are guilty of fraud as defined by the Indian Arts and Crafts Act of 1990 and therefore potentially subject to criminal prosecution.Footnote ¹⁷ It will be far more cost-effective to step up enforcement activities than to create an entirely new bureaucracy committed to the wholesale protection of Navajo culture. Enforcement of existing law could be enhanced by promotion of a fair trade system that assures buyers that rugs are made by Navajo weavers who receive a reasonable percentage of the profits from any sale.

The history of the indigenous art markets throughout North America and elsewhere shows that industrial production and the importation of facsimile products from low-wage regions almost inevitably depress the market for local artisanship of low to middling quality.Footnote ¹⁸ The solution for indigenous artists has been to raise the quality of their work to secure the high end of the market, where buyers are willing to pay a premium for quality and authenticity. In deciding how best to protect the interests of its artists, policymakers for the Navajo Nation have little choice but to weigh the logistics of protecting weavers from competitive knock-offs against the cost of providing training that will help weavers raise the quality of their work to the level of the community's most successful practitioners.

In the face of the complexities of this case, then, I find it hard to see how Carpenter et al.'s comprehensive claim of cultural ownership—however forcefully argued as legal theory—provides much purchase on the problems faced by Navajo weavers today. More prosaic intellectual property and trademark legislation, which has the virtue of already being in place, could help if vigorously enforced and, if necessary, expanded modestly in scope via legislative modification.

THE RISKS OF EQUATING CULTURE WITH TERRITORY

Let me turn now to the element of their argument that I find most troubling because of its implications beyond the specific realm of American Indian law. A central pillar of IDP is insistence that cultural stewardship is inseparable from an intimate relationship to land, from which, the authors argue, indigenous culture “grows.”Footnote ¹⁹ To their credit, the authors admit that this observation flirts with cliché, that it dances with wolves on the edge of the noble savage stereotype. But they ultimately endorse it anyway, thus committing themselves to the equation people = culture = land.

I would be the last to deny that indigenous peoples feel a profound, emotionally intense connection to their ancestral territories. But so do many non-indigenous peoples, and it seems pointless to enter into a debate about whose love of natural landscapes is deeper or more genuine. What is at issue is whether this relationship to territory, this primordial affinity, is needed to establish a group's rights in its traditional cultural expressions. Carpenter et al. present no convincing evidence that it is; they simply assume it. Moreover, invoking the people = culture = land equation, which may be defensible in discussions of federally recognized Indian nations in the United States, has the pernicious effect of implicitly delegitimating the cultural and intellectual property rights of people in folkloric communities removed from ancestral landscapes or who have long since adapted to urban settings. I refer to the millions of indigenous citizens who live in the sprawling cities of Latin America, the Pacific, and Africa, or non-indigenous peoples—Afro-Peruvians, Gujaratis in Panama, and countless other diasporic communities—who harbor distinctive musical, artistic, or culinary traditions. By directing their analysis only to indigeneity as understood by American Indians, Carpenter et al. offer a provincial vision of indigenous rights that is out of step with current thinking about the complexity of indigenous identities and the crisis of cultural and intellectual property at the global level.Footnote ²⁰

A community's special relationship to ancestral lands cannot, of course, be removed entirely from considerations of indigenous rights. Clearly it is relevant when considering the social impact of policies that would disfigure landscapes of great spiritual significance. But treating people = culture = land as a universal principle is freighted with undesirable implications that merit critical attention.

IS IT POSSIBLE TO DEFINE CULTURE AS PROPERTY WITHOUT COMMODIFYING IT?

My final quibble is a philosophical one, although not entirely beyond the scope of Carpenter et al.'s elegant defense of the utility of property concepts in protecting indigenous heritage. Here I refer to questions raised by John L. and Jean Comaroff in their recent work Ethnicity, Inc. The Comaroffs focus their attention on ways that ethnic groups—and indigenous groups in particular—have come to commodify their cultures in order to survive amid the neoliberal economic policies that, with few exceptions, define the world in which they live. “Identity,” the Comaroffs declare, “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.”Footnote ²¹

Although indigenous peoples show admirable creativity in their use of capitalist techniques to resist the nation-state and fight for higher levels of self-determination, such strategies may prove harmful over the long run. It is by no means clear that propertization—which, if I understand correctly, is what Carpenter et al. are defending as a way to advance indigenous people's rights in their heritage—can be pursued without also fostering commodification. Carpenter et al.'s essay singles out the work of the legal scholar Margaret Jane Radin as providing a foundation for their insistence that property can have a salutary effect in establishing and maintaining identity. There is, however, another side to Radin's work that Carpenter et al. choose to deemphasize. Although Radin makes a compelling case that some forms of propertization may empower individuals and, by implication, groups, she also acknowledges that underneath property concepts there always lurks the specter of commodification—that is, an inexorable tendency to treat property as fungible and alienable.Footnote ²² In a market society, even a hint of alienability can have a powerfully corrosive effect on the moral standing of whatever has been propertized. “In the kingdom of ends,” Kant said famously, “everything has either a price or a dignity.”Footnote ²³

Carpenter et al. express great confidence that commodification is unlikely to become a problem for American Indian nations, which have strenuously opposed the alienation of ritual objects, human remains, and sacred places. I agree that commodification is not a likely scenario in such cases. But as the Comaroffs observe, indigenous identity itself is increasingly commodified around the world, especially where its market value can be leveraged by political sovereignty. This has produced marked improvement in the fortunes of some indigenous peoples but also heartbreaking stories of communities disenfranchising members through the sudden imposition of more restrictive membership rules—the goal being, apparently, to reduce the number of people with whom the new wealth must be shared.Footnote ²⁴

It should be obvious that I have been engaged by “In Defense of Property,” whose arguments for the propertization of heritage are as compelling as any in the current literature. Precisely because the essay is so important, I wish to challenge Carpenter et al. to stretch their arguments beyond the limited perspective of sovereignty-thinking and to spell out more clearly how they would put their ideas of cultural ownership to work in ways that would not unduly regiment and bureaucratize the creative lives of indigenous and non-indigenous peoples alike. I would also welcome their thoughts on how their arguments can be reconciled with what some scholars feel is the move toward commodifying indigenous identity in a world hungry for cultural difference.