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Published online by Cambridge University Press: 19 October 2009
This paper examines some of the complex issues that relate to the management of “heritage,” primarily as such issues relate to Indigenous populations and communities. Numerous authors such as Aplin,Aplin, Heritage Identification, Conservation, and Management. Barkan and Bush,Barkan and Bush, Claiming the Stones. Brown,Brown, Who Owns Native Culture? and GreenfieldGreenfield, Return of Cultural Treasures. recognize the social, political, and symbolic aspects of heritage and discuss such issues in detail. This paper, therefore, does not approach the broader issues of heritage, but instead focuses on the intricacies of relationships between the various populations that attempt to exert control over particular aspects of heritage. While many authors recognize the role of cultural nationalists and cultural internationalists in the debate over heritage issues, I argue that Indigenous populations and other enclaves within nations— cultural “intranationalists”—comprise a new and growing voice in the debate.
“Heritage is appreciated and cherished because it enriches life …”
–Elazar Barkan5
Barkan, “Amending Historical Injustices,” 17.
While UNESCO has provided a listing of the types of materials that occur within cultures, the question remains as to who has the right to deal with (and in) culture. Does “heritage” belong to those who create it as part of their cultural practices, or does it belong to the world as a whole?
Harding notes: “The debate between the ‘cultural internationalists’—those who believe cultural heritage is the property of all humankind—and the ‘cultural nationalists’—those who believe that it is first and foremost the property of sourcenations—has been well documented in the ever-growing mound of literature on the disposition of cultural heritage.”6
Harding, “Value, Obligation and Cultural Heritage,” 300.
There are a few exceptions, notably the application of NAGPRA statutes on lands within the external boundaries of tribal reservations.
The term “cultural intranationalists” is used to describe the views of distinct groups within a larger governmental body. In this regard, such groups may be galvanized by social, cultural, religious, or other factors.
As with the cultural nationalists and cultural internationalists, cultural intra-nationalists—Indigenous populations or other cultural, social, or religious enclaves within source nations—often feel that they should be able to control the heritage material they see as rightfully theirs. Throughout the world, indigenous populations are often seen as “… politically weak, economically marginal, and culturally stigmatized members of the national societies that have overtaken them and their lands.”9
Dyck, “Indigenous Peoples and the Nation-State,” 1.
Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;10
or are
… regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.11
The tension between cultural property and the groups that relate to them has become increasingly obvious. Coggins12
Coggins, “Latin America, Native America, and the Politics of Culture,” 112.
Ames, Cannibal Tours and Glass Boxes, 23.
Ames, Cannibal Tours and Glass Boxes, 13.
Additionally, as Aboriginal people and other minorities gain further control of their economic, political, territorial, and social spheres, they seek also to control the objects that they see to define their heritage, through negotiation and through legislation. Often this control and perception of heritage lies in direct conflict with the perspective presented by the dominant culture or carried by visitors to a particular area. Such perspectives are brought to mind when authors ask such questions as “Is Australia the appropriate ‘representation’ of Aboriginal culture?”,15
Barkan, “Amending Historical Injustices,” 13.
These industrialized societies might not see their representations of Indigenous heritage as an act of cultural internationalism, but when Timothy and Boyd discuss how “the representation of heritage can act to legitimise existing social and political values and structures,”16
Timothy and Boyd. Heritage Tourism, 257.
Harding, “Value, Obligation and Cultural Heritage,” 302.
While the debate over ownership and control of heritage continues, there are specific aspects that relate to the various classes or types of heritage under consideration: the tangible, the intangible, and the immoveable.
Tangible objects—objects that can be touched, seen, and preserved—have the likelihood of becoming symbols with different layers of meaning to many different groups of people. In The Plundered Past, Karl Meyer writes “the nationalist, the collector, and the curator … each looks upon the past as a piece of property. Another approach is possible—to see our collective cultural remains as a resource whose title is vested in all humanity.”18
Meyer, The Plundered Past, 203.
Warren, “A Philosophical Perspective on the Ethics and Resolution of Cultural Properties Issues,” 22.
Tangible objects are one of the most commonly discussed aspects relating to heritage. Objects produced by a culture certainly find their way into museums and collections, from the most mundane object that depicts the day-to-day commonality of culture to objects that represent major aspects of the culture. Even though the mundane objects provide information concerning cultures of the past and the present, it is perhaps the more spectacular objects that represent cultural aspects that extend beyond the limits of a single region or state. Spectacular objects such as the Elgin Marbles and the Mona Lisa represent items that are generally considered to be of importance beyond the local group that maintains them.
Such items, often considered to be “cultural patrimony,” have important places within the cultures that create, curate, or covet them. Items of cultural patrimony are items having ongoing historical, traditional, or cultural importance central to the group that claims them and that may not be alienated, appropriated, or conveyed by any individual group member.20
This description of “cultural patrimony” is based on definitions within the Native American Graves Protection and Repatriation Act, 43 CFR Part 10.2, “Definitions.” There are obviously many others.
C.f., Greenfield, The Return of Cultural Treasures; Meyer, The Plundered Past; and Webb, “Appropriating the Stones.”
Lyons, “Objects and Identities,” 124.
C.F., Gerstenblith, “Cultural Significance and the Kennewick Skeleton,” 168: “The legal stature of the Native American cultural past illustrates the disparate and unequal treatment of different groups within the American legal system.”
In another perspective on tangible cultural properties, Richard Handler divides the various groups competing for ownership of cultural materials into two camps: retentionists and restitutionists. Retentionists argue that museums that possess cultural items have possessory rights to retain them, while restitutionists believe items ought to be returned to their places of origin.24
Handler, “Who Owns the Past?” 67.
Handler, “Who Owns the Past?” 71.
A second class of heritage includes “… all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory” as well as “… objects, knowledge and literary or artistic works which may be created in the future based upon its heritage.”26
Daes, Discrimination Against Indigenous Peoples, Article 11.
Daes, Discrimination Against Indigenous Peoples, Article 12.
These intangible aspects of a culture are more commonly defined as intellectual property and extend the situations into realms beyond that of mere objects and into the realm of ideas, representations, and other concepts. In the Western legal system, artists are given the protection of the law of copyright while companies are given protection in the form of trademarks. The basic conflict within the protection of non-Western cultural ideas, however, seems to be the ways that Western judicial systems interpret non-Western ownership practices and the appropriation of non-Western images.
Perhaps one of the more famous cases involving the appropriation of an image by a Western group involves the New Mexico state flag and a small Pueblo of New Mexican Indians. The depiction of the symbol known as the “Zia sun” has been used as the central emblem on the New Mexico state flag since 1925. The Zia symbol has three rays extending in each direction from a circle representing the sun, while the New Mexico flag has four rays extending in each direction. The design for the flag was derived from the central motif of a ceramic jar produced by an anonymous Zia potter in the late nineteenth century.28
Brown, Who Owns Native Culture? 69.
The case of the Aboriginal Australia flag has had similar repercussions since its adoption as an official flag of Australia in July 1995. The flag consists of a yellow rondel (or circle) centered on a rectangle made up of two horizontal bands of color—a field of black on the top and a field of red on the bottom. The colors are said to represent the black of the Aboriginal Australians' skin, the red either the blood of Aboriginals spilled over the centuries or the red of the Australian soil, and the yellow the sun.29
Flags of the World, website at http://flagspot.net/flags/au-abo.html#abor.
In court proceedings to protect his design from unauthorized use, Thomas alleged that the Australia Department of the Commonwealth had “appropriated” his design in arranging for the manufacture of flags for use by the Commonwealth. In additional, Thomas alleged that, by a proclamation published in the Commonwealth of Australia Gazette on July 14, 1995, the Governor-General proclaimed the artistic work under the 1953 Flags Act30
Flags Act, on-line version at http://www.austlii.edu.au/au/legis/cth/consol_act/fa195361/.
The Court held that, because of various procedural shortcomings on Thomas' part, the Commonwealth was not liable for copyright infringement, but also held that Thomas was entitled to establish ownership of copyright in the artistic work, thereby able to prevent the Commonwealth from using his design without compensation.31
Federal court of Australia, Thomas v. Brown and Tennant, on-line version at http://www.austlii.edu.au/au/cases/cth/federal_ct/1997/215.html.
At issue here are the rights of Indigenous groups to control the extent that non-Indigenous groups, including state governments, appropriate Indigenous symbols—whether the symbols belong to a group or to an individual. In the Australian situation, the artist is a known and active individual who was able to initiate legal proceedings within a jurisdiction that recognized the rights of the individual artist to control access to his work. In the case of the Zia symbol, however, the use of the religious symbol has repercussion concerning ideas and beliefs held as part of a widespread cultural system that recognizes group ownership of certain classes of ideas and symbols that no one individual can own or alienate. As Hutt and McKeown note: “Recognition of cultural property rights has been obstructed by the disparity between Eurocentric views of personal property … and the traditional communal property practices of some native people.”32
Hutt and McKeown, “Control of Cultural Property as Human Rights Law,” 365.
But, from another perspective, the implications of Zia actions to control the use of the symbol through the concept of intellectual property rights might have unintended results. In 2000, Southwest Airlines received permission from the Zia pueblo to display the Zia sun symbol on an airplane.33
“Southwest Airlines today dedicated a multi-million dollar tribute to the people of New Mexico by unveiling its tenth specialty aircraft named ‘New Mexico One.’ The 737-700 carries a depiction of the state's official flag, anchored by the ancient symbol of the Zia Pueblo Indians…. Since New Mexico One carries the ancient symbol of its people, officials at Southwest Airlines and the designers of the paint scheme consulted with the Zias to make sure the symbol was used correctly. ‘The Zia symbol means a great deal to us and we appreciate Southwest's efforts to make us a part of this process,’ said Peter Pino, the Zia tribal administrator. Pino was instrumental in securing the participation of his governor for today's event as well as children from the Zia Pueblo who performed a traditional Crow Dance as part of the aircraft dedication.” Southwest Airlines press release dated Sept 18, 2000, on-line version at http://www.southwest.com/about_swa/press/prindex.html.
Posey, “Selling Grandma,” 215.
In the United States, the repatriation of human remains has been one of the most hotly contested issues in returning items of cultural property. Human remains, identified in the list of “intangible objects” within Article 12 of the Daes Report, have been subjected to legislation as part of an attempt to allow Native American tribal groups to gain more control over the skeletal remains of their ancestors—both real and perceived. While the literature on the repatriation of human remains is immense and growing, Sarah Harding offers a relative succinct analysis of the underlying principles upon which it has been based: “The work that has been done on understanding and justifying repatriation … tends to focus on the rights of cultural groups or the political value of cultural heritage [while people] who argue against repatriation and restrictive laws stress its educational and scientific value or other benefits derived from having open access to a wealth of objects and customs.”35
Harding, “Value, Obligation and Cultural Heritage,” 294.
As an appropriate example, American anthropologists Douglas Owsley and Richard Jantz36
Owsley and Jantz, “Kennewick Man—A Kin?” 2002 and “Archaeological Politics and Public Interest in Paleoamerican Studies”, 2001.
Owsley and Jantz, “Kennewick Man—A Kin?” 141.
Other authors challenge this view. Pardoe, “Arches of Radii,” 140: “[Archaeologists have] … legitimised our curiosity by appealing to the noble view of world history, a democracy of knowledge for all … (which) no one person could own”. Patty Gerstenblith, “Cultural Significance and the Kennewick Skeleton,” 175: “[Owsley and Jantz' explanation that their research will benefit all humankind] … justifies their unilateral appropriation of cultural and human remains and their control over interpretation of the past through these remains”. And Tsosie, “Privileging Claims to the Past,” 632: “The ‘common heritage’ theory seems superficially attractive, and has the same broad appeal as claims for ‘universal citizenship’ and other warm and fuzzy notions or ‘our common humanity.’”
Do scientists have the right to practice science, even if their values are in direct conflict with populations around them? As a corollary, must Indigenous populations serve as the experimental database for those scientists? The scientific perspective seems to speak to the collective benefit of humanity, but that perspective seems guided primarily by a Western notion that conveniently dismisses other perspectives as parochial. In this situation, Tsosie writes, “it is obvious that the appeal here is for the entire world to accept the supreme value of scientific knowledge over all other cultural, political and social values which might govern the claim for control of ancient human remains. This type of claim constitutes an imperialistic endeavor that seems more consistent with the colonial history of science than its modern-day proponents want to admit.”39
Tsosie, “Privileging Claims to the Past,” 632.
A third class of heritage includes things or places that are a mixture of the tangible and the intangible. These may include specific places such as the Grand Canyon and Angkor Wat, or more general places such as the Amazon Rain Forest and the Congo. Regardless, such places are considered to be areas of cultural property that are worthy of protecting for the benefit of the entire world.
The United Nations Educational, Scientific and Cultural Organization (UNESCO) encourages the identification, protection, and preservation of cultural and natural heritage around the world considered to be of outstanding value to humanity, where “cultural heritage” refers to monuments, groups of buildings, and properties with historical, aesthetic, archaeological, scientific, ethnological, or anthropological value, and “natural heritage” refers to outstanding physical, biological and geological formations, habitats of threatened species of animals and plants and areas with scientific, conservation, or aesthetic value. This is embodied in an international treaty called the Convention concerning the Protection of the World Cultural and Natural Heritage, adopted by UNESCO in 1972.40
UNESCO, “Convention”,1972, on-line version at http://whc.unesco.org/pg.cfm?cid=182.
The World Heritage Convention was created in response to humankind causing widespread change and damage to natural areas. By the 1970s many people all over the world were trying to think of ways of looking after the natural heritage of the earth for future generations. In the 1980s the World Heritage Committee also began to consider the need to conserve and protect the world's cultural heritage for future generations. What makes the concept of World Heritage exceptional is its universal application. World Heritage sites are seen as belonging to all the peoples of the world, irrespective of the territory in which they are located. It is the idea that there exists some universal quality of particular locations that should transcend national identities that makes, for example, a World Heritage site in Egypt belong equally to Egyptians and to the peoples of Indonesia, Argentina, or Australia.
In areas where Indigenous populations have been able to retain or regain some control over their heritage, there are the possibilities of compromise. In the past, the Indigenous owners of sites such as were unable to control the means to which their heritage was co-opted by the dominant populations. Aplin notes that “indigenous heritage is often the form that is most removed from dominant groups and governments, and also most under threat.”41
In some areas things have changed, for some Indigenous populations are more involved in the ways that the visitor experiences the location. At Uluru (once and still sometimes known as “Ayers Rock”), for example, the local Indigenous group (the Anangu) is an active participant in the ways through which the location is managed.The huge rock formations of Uluru and Kata Tjuta are remarkable geological and landform features set in a contrasting, relatively flat, sand-plain environment. They are a part of an important cultural landscape and have special significance to Anangu. The features of both Uluru and Kata Tjuta are physical evidence of the actions, artefacts and bodies of the ancestral heroes (the tjukuritja) who travelled the earth in creation times. The travels of these ancestral heroes are celebrated in Anangu religion and culture today. The wider landscape of the park also contains evidence of the travels of Anangu ancestors and represents the outcome of thousands of years of management under traditional practices governed by the tjukurpa (a cultural law that describes relationships between the Anangu and the land). Aboriginal people learned how to patch burn the country from the Tjukurpa of lungkata, the blue tongued lizard. Now, although modern methods are used, the practice of lighting small fires close together during the cool season leaves burnt and unburnt areas in a pattern like a mosaic.This knowledge is now adopted as a major ecological management tool in the Park. Tjukurpa also teaches about the location and care of rockholes and other water sources.
Uluru was first listed as a World Heritage Site for its natural values in 1987 as an outstanding example of significant ongoing geological processes, biological evolution and man's interaction with his natural environment, and as an area that contains unique, rare, or superlative natural phenomena, formations or features or areas of exceptional natural beauty. Additionally, in 1994, it was successfully nominated as a cultural landscape because of its representation of the combined work of nature and of man, manifesting the interaction between humankind and its natural environment, and it is an associative landscape having powerful religious, artistic, and cultural associations of the natural element. These associations are strong to the local Aboriginal populations, but also seem to strike a chord with the nonlocal as well: “In some odd way you that you don't understand and can't begin to articulate you feel an acquaintance with it—a familiarity on an unfamiliar level.”42
Bryson, In a Sunburned Country, 256.
But Uluru continues to maintain an importance to the local groups in a manner beyond that which gives its importance to the World. The listing of Uluru-Kata Tjuta National Park as a World Heritage Property for its natural and cultural values represents years of work by Anangu to assert their role as custodians of their traditional lands. This international recognition is a significant victory for the Anangu as it confirms the validity of Tjukurpa as a religious philosophy linking Anangu to their environment, the Anangu culture as an integral part of the landscape, and Anangu understanding of and interaction with the landscape as being the primary tool for looking after country. This is one of the reasons Anangu prefer that people refer to the lands of the Park by the traditional name and not the non-Anangu names given by people from elsewhere.
As part of the allure of the area, tourists have clambered along the spine of the rock, and t-shirts proclaiming “I climbed Ayers Rock” are on sale in local shops. More recently, however, the shops are supplementing these shirts with others that read “I didn't climb Uluru.” The Uluru climb is the traditional route taken by ancestral Mala men upon their arrival to Uluru, and the local population feels it sacreligious to equate themselves with the spirit people. They have not closed the climb, but they prefer that visitors, as a result of education and understanding, choose to respect their law and culture by not climbing. As travel writer Bryson states, the local population of Pitjantjatjara and Yankunyjatjara “… deeply dislike the visitors (whom they call mingas or ‘ants’) clamboring all over it. Personally, I don't blame them. It is a sacred site to them. I think it should be for everyone, frankly.”43
Bryson, In a Sunburned Country, 257.
In the United States, a similarly recognizable geologic feature exists in the northeastern corner of Wyoming. It, too, is known by two names. To the Native American groups that imbue the area with spiritual powers and religious significance, the area is known as Bear Lodge. Most non-Indian people, however, recognize the area from its starring role in the movie Close Encounters of the Third Kind as Devils Tower.
Gulliford describes the situation at Devils Tower as “at the forefront of issues involving Native American religious freedom and access to public lands.”44
Guilford, Sacred Objects and Sacred Places, 162.
Hanson and Chirinos, Ethnographic Overview and Assessment of Devils Tower National Monument, Wyoming, 13–17.
See, for example, Brown, Who Owns Native Culture, 157; Little, Sacred Lands of Indian America, 24.
Gulliford, Sacred Objects and Sacred Places, 167.
The situations at Uluru and Bear Lodge bring certain aspects of heritage and heritage management into sharp focus. To whom should heritage belong? Should heritage belong to local groups that have special relationships with an area, an object, or a concept? Should Australian Aboriginal groups be able to control the concept of “dreaming” or “dreamtime” to the exclusion of all non-Aboriginal groups? Should the religious principles of the Plains Indians who hold Bear Lodge to be sacred be held to be more important than the recreational rights of the rock climbers? David Pokotylo and Gregory Bass recognize that sacred sites are “… much more that relics of the past for study by academic archaeologists: they are sacred places of living power.”48
Pokotylo and Bass, “Interpreting Cultural Resources,” 165
Visitors continue to have an unique cultural experience at Uluru and leave knowing that the Park is managed according to cultural practices that date back tens of thousands of years. Since listing the Park as World Heritage annual visitor numbers have risen to over 400,000 in the year 2000.49
Commonwealth of Australia, http://www.deh.gov.au/parks/uluru/wheritage.html.
The two examples serve to show the apparent differences between the direct and indirect control of the physical site of the cultural property by the Indigneous population. The Indigenous group with cultural relationships with Uluru is able to exercise more direct control over the area whereas the Indigneous populations who maintain cultural relationships with Bear Lodge are able to exercise only indirect control over the area.
If conflicting perspectives between Indigneous wishes and heritage tourism exists, why should Indigenous groups participate? While there are advantages and disadvantages in participating in the exploitation of heritage, the primarily advantage seems to be the economic benefits that can be derived, both from direct (ticket sales, tour income, lodging and restaurant sales, and so forth) and indirect (such as employment and tax revenues) income sources. Another advantage is the renewed interest and pride in traditions aroused through sharing, demonstrating, and talking about them to people who are truly interested in them. But even the postive aspects of heritage tourism can lead to negative and unintended results. The presence of outsiders within the community might act to “dilute” and corrupt group morale, increase exposure to disease, drugs, and alcohol, and maybe even lead to the loss of privacy and the chance for a “normal” community life.50
The continued presentation of “traditional” lifestyles also might have the unintended result of making the community appear to be a cultural relic that has no place within comtemporary society.Manyallaluk Aboriginal community, for example, caters to the tourist trade in the Northern Territory. Located on Jawoyn land 110 kilometers southeast from Katherine, NT, it is home to about 150 Indigenous people of Jawoyn, Mayali, Dalabon, and Rembarrnga language groups. The name Manyallaluk (Man-yalla-look) means Frog Dreaming and refers to a traditional fertility site to the east of the community. Tourist brochures describe the opportunity to get “an experience you'll never forget” by sharing “a cup of billy tea” and an “informative walk to see bush tucker and bush medicines in season” led by “your Aboriginal guides.” Afternoon activities on tap as part of the tour include “traditional bark painting, fire lighting, spear throwing, and basket weaving.”51
Travel North Brochure, Outback Australia, 17.
Graeme Aplin writes: “Heritage is both intensely personal and intensely political. In effect, these two elements go hand in hand, as heritage is hotly contested because we each have our own views on what represents heritage, and what is worth conserving.”52
This is not to say that there are certain features that resonate strongly within the breast of every human on some level or another (Uluru, the Grand Canyon, the Taj Mahal), but should these features “belong” to everyone? Should local populations that hold such areas as sacred be allowed to restrict, or even deny, access to locations because of their religious principles, or should everyone, by virtue of the mere fact that they are human, be allowed access in order to “commune” with the spirit within the location?If “the heritage of every nation is projected on its own priceless objects and sites,”53
Barkan, “Amending Historical Injustices,” 17.
Whitt, “Cultural Imperialism and the Marketing of Native America,” 171.
Who's right when the concept of heritage is put forth? Should heritage belong to the particular nation within whose boundary the heritage currently (or once) existed or to the international community? Aplin56
notes: “National heritage is sometimes used by a government or dominant group in society as a concept to legitimize the state, to help define it, and to advance individuals' identification with it.” As such, heritage has a strong capability of helping define a group ethos and increase relationships within a population, but it likewise has the capability of excluding other portions of the population—those economically, politically, philosophically, or socially on the fringes of the dominant culture.Indeed, perhaps one of the most recent examples of what Timothy and Boyd57
Timothy and Boyd, Heritage Tourism, 273.
CNN, “Afghan Buddhas”, on-line edition at http://edition.cnn.com/2001/WORLD/asiapcf/central/03/12/afghan.buddha.02/.
Whose right is it to control heritage? Do local populations whose cultural and social practices contribute to an area's significance have the right to limit access based on their own cultural values, or should everyone be allowed to visit and/or participate? Questions such as these resonate throughout the concept of heritage, and everyone involved in it have their own opinions concerning the answers. As Indigenous and Third World populations increase their participation in the economic boon associated with heritage tourism, the questions will become more and more difficult to answer, and each group will have to struggle to find the compromises that work within each specific situation.
Can cultural intranationalists hope to convince cultural nationalists or cultural internationalists that their perspective is as valid as that of their opponents? Situations such as the Kennewick Man court case raise the issue not only of heritage ownership and control but also of worldview. Individuals within these groups must somehow find middle ground in the contested swamps of heritage management, heritage tourism, and other heritage issues, or the current conflicts will be ones our grandchildren will be writing about and arguing over.