Repatriation Issues by Michael F. Brown

Contents

Introduction

[00:00:00] I became interested in these issues through a very unusual channel, which is that I completed several years of fieldwork among Americans involved in what’s called New Age Religion. And in the course of working with them I became aware of a criticism that groups like New Agers are actually stealing religious beliefs and practices from indigenous groups. It was an interesting issue to me because in the case of repatriation of physical objects, you’re dealing with something that can only be in one place at one time. When Guatemala or Mexico demands that an artifact taken from a Maya archaeological site be repatriated, it’s a piece of physical property that only one person or entity can own. Where information is concerned, information can be in multiple places at the same time. So when the movement towards the repatriation of cultural property began to morph into a demand that information be repatriated, it raised fascinating issues. What does it mean to repatriate something that can in fact exist in multiple sites simultaneously? And what are the moral and the legal implications of inter-cultural borrowing? What does it actually mean when a group of middle-class Anglo-Americans engage in shamanic rituals that are inspired by or perhaps even taught by a Tzotzil shaman? It raises a lot of interesting issues about globalization, about the nature of culture in general, about the precarious state that indigenous peoples find themselves in many parts of the world, and the extent to which they own their own knowledge.

Whose Rights?

[01:41:00] Now all this debate is taking place at a time when economies are shifting from a focus on the production and consumption of goods to a focus on the production and consumption of information. The triumph of capitalism has led to a situation in which transnational corporations are essentially mining different parts of the world for information. Now this might be genetic information. It could literally be gene sequences of isolated human populations that code for proteins that could have some medical use. They could be mining the world of ethnopharmacology. There are potentially useful native plants that could be commercialized. They could be mining ecological knowledge of native peoples. They could be using or appropriating musical traditions, which can be recorded and commercialized by major media corporations. At the same time the indigenous rights movement is emerging on the world scene, there is also a sort of parallel development in the world economic system towards this interest in—and aggressive accumulation of—knowledge. These two parallel threads have woven together and have emerged as a claim that native knowledge should be protected or in some cases even repatriated.

There are so many things that are implicated by this issue. One is the whole issue of free speech and freedom of information. Academics and people of all sorts depend upon the availability of certain kinds of information that might be taken from public domain. These demands for the protection or the repatriation of indigenous knowledge raise questions about how much of this information will continue to be available and what kind of legal regimes can be invented and then applied worldwide to protect indigenous knowledge from exploitation. The issues are made even more complicated by the fact that there are two strands of these indigenous demands. One is a demand for economic justice. A much more difficult set of problems has to do with the right to cultural privacy.

Can There Be Economic Justice?

[03:52:00] Let me turn back to the issue of economic justice. One often reads compelling arguments that a native population that assists drug prospectors in identifying potential commercial drug products should be full participants in any profits that come from the development process. On the other hand, an almost infinitely small percentage of potentially interesting drugs is ever brought to market; there is a tremendous start-up cost, and the process itself takes many years—at least a decade—to go from “discovery” to drugs being approved by the FDA and delivered to patients and doctors. So the drug companies are working in a time frame that’s really vast and involves tremendous up-front expenses on their part.

Another issue is that the distribution of the plants is often over thousands of square miles. So it’s not entirely clear why the residents of Village A should benefit from the commercialization of that product when the same plants have been used by groups perhaps ranging from southern Mexico all the way down to Colombia. And then there’s the question of what kind of administrative framework you set up. You’re dealing perhaps with half a dozen different nation-states, each of which has a different administrative process. Even if a drug company reaches a legal and fair-minded agreement with each of those countries, the likelihood that the profits then will trickle down to the target communities is fairly small.

There are lots of logistical problems that make this more complicated. It’s not easily reducible to “Yeah, we should pay the shaman for her knowledge.” It’s not easily reducible to slogans. It takes a lot of time and it takes tremendous dedication by all parties concerned. So I see some grounds for cautious optimism, but it’s going to take a long time.

Cultural Privacy: A Hopi Example

[05:40:00] The other front has this issue of cultural privacy. And that’s a much tougher issue because the question of cultural secrecy, or privacy as it’s being called, has very few parallels in our society, especially in the United States where we, in theory, are committed to openness and the free exchange and expression of ideas. The Hopi tribe of Arizona has unwillingly shared its territory with missionaries for at least a hundred years. And some of those visitors, including the Mennonite missionary H.R. Voth, took photographs of sacred and, in some cases, secret Hopi rituals. Now the Hopis say—and I think there’s every reason to believe that this is true—that in some cases Voth took these photographs against the wishes of the community. And these photographs are now archived in various places. They have been reproduced in hundreds of books and monographs. The Hopi have insisted that these photographs are their cultural property, that that cultural property was taken from them without their consent, and that those photographs should be repatriated, to be disposed of as they see fit, either stored or possibly even destroyed.

On the one hand, I think everybody can sympathize with the outrage that the Hopi feel. They feel that these photographs are ethically tainted by the colonial circumstances in which they were obtained. They’re deeply disturbed when Hopi children, who have not been initiated, are not supposed to have access to certain kinds of cultural information, are shown these photographs. They feel that this undermines the fundamental integrity of their religious vision. There’s a strong moral case that can be made against these photographs. But the question of what’s morally or ethically suspect and the question of what’s legally possible are quite different.

There is no way that those photographs, which have been in circulation for almost a century, can be removed from a world in which all it takes [to reproduce them] is an electronic scanner and a computer. Even if the originals were returned to the Hopi, or destroyed, or closed or quarantined in some way, those pictures are going to be in circulation indefinitely, forever. So the question you have to ask is, “Is a policy of repatriating these photographs, or destroying them or closing them, going to be effective?” And what is the social cost associated with taking something that’s been in the public domain and making it secret? What about freedom of information in general? Will this policy, which probably won’t work anyway, have unanticipated effects that could reduce general public access to information in other spheres?

This is what’s awkward in engaging with groups like the Hopi. They’re obviously advocating their own particular tribal interests, and quite rightly so. But I think that any thinking citizen who looks at the claim has to weigh their compelling claim against other kinds of interests. This is why this particular issue of revelation versus secrecy, public domain versus culturally sensitive information, raises a very difficult set of issues that archivists and cultural resource managers are dealing with all over the world.

Solutions

[08:39:00] How can we balance these claims [such as the Hopi’s] against general civic interest in openness and the free exchange of ideas? And what are the implications of reducing the free flow of ideas? And what’s that going to do to the future of scholarship? There are any number of cases where scholarship [has] revitalized traditions by using reference works written by historians and anthropologists. These works have served a useful purpose for indigenous ethnogenesis, or native reconstruction. Now when spokespersons for those groups say, “Well, thanks a lot for keeping this information for us, but we want it back now, or we want to destroy it,” I think that any thinking person has the right to at least say, “Let’s talk about this a little bit more.”

Another way of looking at it is that these groups simply want to be taken seriously, and they want to be part of a dialogue about the use of this information. Sometimes what we have to do is back off from talk about rights—“I have a fundamental human right to control the knowledge of my people”—and say, “There are broader sets of rights, and they conflict, so let’s just work out a pragmatic agreement that’s a compromise.” Rights talk tends to end conversation. If you say, “It’s my right to do this,” you’re not even making a case for why you should be doing it. You’re just saying, “It’s my right. I have to do it. Get out of my way.” We have to sit down and talk about the best possible ways to achieve our respective goals without giving up too much. That is going on in archives and libraries and museums all over the world. Archivists very quietly make sensitive information a little less available out of respect for the sensitivities of the population from which this information has been derived. So there’s a kind of gate-keeping measure that says: “Before you come and use this information, I want to make sure that you have the interest of the group that’s the source of this knowledge at heart, that you understand what’s really at stake here, and that you’re sensitive to its concerns. And once those basic conditions have been satisfied, I’m willing to give you access to this kind of material.”