ON THE PROTECTION OF INDIGENOUS HERITAGE:
A RESPONSE TO AUDRA SIMPSON

Michael F. Brown
October 2007

Eventually every writer has the unhappy experience of receiving a review that so distorts the intent and substance of his or her work that it appears to emanate from a distant planet.  Fortunately such moments are rare.  In the best case, criticism can be convincing and transformative.  I doubt that I am alone in having occasionally contacted a reviewer to say something on the order of, “You were right about that point, and I wish I’d thought of it.”

Audra Simpson’s recent essay, “On the logic of discernment,” published in the American Quarterly, falls into the first rather than the second category.  Simpson, a professor of Anthropology and American Indian Studies at Cornell, organizes the essay around reviews of my book Who Owns Native Culture? (Harvard, 2003) as well as Eva Marie Garroutte’s Real Indians: Identity and the Survival of Native America (California, 2003).

The webmaster of the American Studies Association, the journal's publisher, politely declined my request to post a response to Simpson's review on the grounds that her assessment isn't entirely negative. My concern, however, isn't praise or criticism but fundamental accuracy.

Let me start with some things that Simpson gets right.  She correctly observes that both WONC and Real Indians are offered as contributions to Native claims for justice and recognition.  Her description of WONC’s subject matter and scope is also reasonably accurate.   She identifies me as a liberal--or as I would put it, someone committed to principles of liberal democracy while acknowledging their flaws--and she associates me with the work of the Canadian political philosopher Will Kymlicka.  That is flattering company, even if I don’t agree with every element of Kymlicka’s particular vision of multicultural democracy.

As a result of my liberalism, Simpson says, I tacitly accept settler colonialism as it currently exists, decline to dwell on the historical injustices associated with it, and assume that Native citizens operate on an “even playing field, in which there is an intellectual commons that both indigenous and settler actors must share” (486).

These observations are decontextualized and therefore misleading.  WONC’s two chapters on sacred sites generally assume that a wholesale return of all public lands, including national parks and forests, to indigenous communities is an unlikely scenario.  In that sense I accept the status quo while insisting that federal and state governments can do more to accommodate legitimate Native religious uses of those lands.

But most of the book is about intangible cultural heritage, not sacred places.  As a work based on multi-site interviews undertaken in the late 1990s and early 2000s, WONC focuses on the present rather than the past, just as the people (Native and otherwise) interviewed for the book emphasize their present-day concerns and aspirations.  Simpson may be committed to a grand project of restitution, but that isn’t the subject of my book, and I see no reason why I must be held accountable to it.  More importantly, even if some massive restitution of indigenous lands were imminent in North America and elsewhere, there is little reason to believe that this would resolve conflicts over intangible cultural property.  That’s because intangible heritage is not entirely responsive to the logic of national sovereignty. If you don’t believe me, take a minute to think about the Internet and the limited ability of national governments to control it.

Simpson’s most egregious and hurtful misrepresentation is that my book is “inflected with skepticism and disbelief” (489) and, again, that I “treat [the problem of cultural protection] with unrelenting skepticism regarding the sincerity or authenticity of these cultural forms” (487).

WONC has taken some hits here and there, but even the most critical reviewers have commented that it treats Indigenous claims to ownership of cultural productions seriously and with unfailing respect.  In many cases the book finds considerable merit in these claims and comments favorably on effective ways of resolving them.  The book’s concluding chapter praises the many pragmatic Native intellectuals, local leaders, and cultural-resource managers who are working hard to resolve issues of cultural property--and often enjoying real success.

However, genuine respect doesn’t mean accepting uncritically every slogan, accusation, or questionable assertion of fact.  That is “solidarity thinking,” not scholarship. Uncritical solidarity insults the intelligence of one's interlocutors.   Taking Native claims seriously means exploring their justification and implications and respectfully noting when they don’t withstand close scrutiny.  WONC doesn’t declare that Native anxieties about cultural appropriation are bogus or trivial.  Instead, it takes the claims at face value, tries to distinguish between those that are compelling and those that are less so (even to many Native people themselves), and describes efforts to improve the situation.

In WONC I do comment skeptically on simplistic, highly bureaucratic proposals to enforce new systems of cultural protection or ownership (“Total Heritage Protection”).  My doubt is based on an absence of evidence that they are likely to succeed.  There is, moreover, significant risk that they would strengthen the position of powerful global actors committed to privatizing the world’s intellectual commons.  On balance, the book is less interested in making a romantic case for a global intellectual commons, which is what Simpson alleges, than it is in making a case against the development of multiple, dystopian anti-commonses, even when implemented in the name of Native rights.

Nowhere in her review does Simpson show that I have gotten the facts of particular cases wrong or presented them tendentiously. If the book has any point, it is that the devil is always in the details when considering cultural-property claims. Simpson seems to object to my analysis simply because I have the temerity to dig into individual cases and use the problematic elements of some of them to illustrate how difficult it would be to implement the protection of Native heritage on the massive scale that she apparently wants.

This leads to a second major misrepresentation: that I am a “statist.”  I take this to imply that WONC advocates state-adjudicated solutions to disputes over cultural property.  This is, in fact, exactly the opposite of what the book argues.   To the limited extent that the book is prescriptive, it cautions against state-mandated, formally regulated solutions to disputes over cultural property because history strongly suggests that the last thing Native people should cede to the state is increased control over Native art, music, ritual, and cultural productions in general, even in the name of “protection.”  The Great White Father has made a mess of this in the past, and I see no reason to believe He’ll do better this time.  I argue that the best hope for securing Native cultural productions lies in civil-society solutions and the articulation of a more robust theory of cultural privacy, coupled with reforms in the global system of intellectual property protection.

There is more . . . but I’ll desist.  I'm left with a sense of bafflement that a scholar of Simpson's caliber would offer such a distorted portrayal of the tone and substance of another's work.  Simpson is free to disagree with my approach, of course, and others have done so in ways that have reshaped my thinking.  But a line was crossed in her review, and it should not pass without challenge.


Additional resources

Readers who wish to judge the tone of my book themselves can access the first 31 pages here, a 1.4 Mb PDF file. Because the American Quarterly is a subscription-only publication, I cannot post Simpson's review in full-text format.

Simpson objects to passing comments made about NAGPRA in my book. WONC deals with NAGPRA, the Native American Graves Protection and Repatriation Act, only insofar as it provides a (flawed) template for claims to intangible cultural property. For a more detailed assessment of NAGPRA, you can download the 2006 essay "NAGPRA from the Middle Distance: Legal Puzzles and Unintended Consequences," which I co-authored with Margaret Bruchac, an Abenaki anthropologist with considerable practical knowledge of the complexities of New England repatriation cases.