Laws, policies, and attitudes about cultural heritage–especially the heritage of indigenous peoples–continue to evolve, largely in the direction of acknowledging past injuries and formulating protection strategies for the present and future.

It’s fair to say that relevant policies are somewhat easier to develop when dealing with material goods such as human remains and objects of religious significance.  These can only exist in one place at a time (unless they’ve been replicated digitally), which means that in principle they can be returned to the control of the communities that created them.  This process is made more complicated by global trade, a problem that has come to public attention as a result of recent attempts to auction Native American religious items in Paris.  These auctions sparked a public outcry in the United States, but thus far efforts to stop such sales have had only partial success.  This unfortunate situation has prompted US lawmakers, with the full support of Native American leaders, to draft S. 3127: Safeguard Tribal Objects of Patrimony (STOP) Act of 2016, currently under review by the relevant congressional committees.  If passed, this law would would increase penalties for the exportation of items of Native American cultural patrimony obtained illegally.  Whether this bill will gain traction in a deadlocked Congress remains to be seen.

A couple of recent publications that frame the broader problem of cultural theft and appropriation are worthy of mention. One is the Texas Law Review essay, “Owning Red: A Theory of Indian (Cultural) Appropriation” (2016) by prominent Native American legal scholars Angela R. Riley and Kristen A. Carpenter, which is downloadable here.  Riley and Carpenter attempt to formulate a unitary approach to understanding and dealing with cultural appropriation.  They recognize that this isn’t easy because claims to intangible property are, in their words “particularly fraught.”  Native Americans, they observe, tend to see intangible heritage as indistinguishable from material heritage even though Anglo-American law treats intellectual property differently from real and personal property.

Riley and Carpenter frame their analysis within the long history of appropriation of Indian resources by the United States.  They explore a number of familiar cases, including the ongoing legal tussle over the name of the Washington, DC, football team.  (Although they see the latter as part of a long history of appropriation, it seems to me  more persuasively treated as a case of defamation.)  In the end–and perhaps surprisingly for legal scholars–they don’t see law as the solution to some forms of appropriation.  Native people, they insist, are mostly calling “not for laws, but for understanding and education,” including respect from the dominant society.

A shorter op-ed piece, “The Problem with Heritage,” has just been published in the anthropology website Sapiens by Joe Watkins.  Watkins is a Native American anthropologist with vast experience in the legal and cultural complexities of repatriation, but his approach in this essay is more global, touching upon cases such as the intentional destruction of historic sites in Mali by Islamic extremists. “So when does heritage become a matter of grave concern? When one group uses it as a weapon against another, or possesses it when it’s important to another, or destroys it for political purposes.”  (In March 2016 Joe Watkins participated in a panel discussion about repatriation sponsored by SAR’s Indian Arts Research Center.)

Watkins bluntly states, “Heritage is a property—something that is passed down from previous generations.” This is a defensible claim in the context of his essay.  But exactly what kind of property is it?  Most property is reasonably stable, with well defined limits.  Some elements of heritage may enjoy such stability; others may not.  And what are its boundaries?  Apparently they are whatever the community of origin says they are at any given moment.  To what extent, if any, is heritage “non-rivalrous” in the sense that one group’s identification of an element of heritage doesn’t preclude other groups from embracing it as well?  Which members of a given community are qualified to anoint elements of heritage as cultural patrimony?

Another perennial problem in heritage debates is presentism, the judgment of past actions by the moral standards of a later time.  Looking forward, it’s not unlikely that an object or cultural production considered an item of commerce today will, at some later point in a group’s history, be redefined as “cultural patrimony.”  This is evident in the way that some European nations pass laws to prevent the export of great works of art that despite their commercial origin are now closely identified with British or French or Italian heritage.  Closer to home, developers in New Mexico sometimes find themselves pitted against local preservationists committed to protecting the remnants of Route 66, which to them represents a form of shared American heritage.

I’ve heard art dealers complain that the proposed STOP legislation doesn’t protect them from the possibility that objects legally purchased or sold today will at some point in the future be redefined as the cultural patrimony of the Indian nation that produced them, thus compromising the objects’ market value.  In my view this isn’t a powerful enough argument to warrant opposing the legislation.  That said, it’s not an entirely meritless concern.

The fast-growing field of Heritage Studies needs deep thinking about the essential qualities and limits of cultural patrimony.  The unanswered questions about patrimony shouldn’t stand in the way of progressive policies and legislation designed to prevent further injustice.  Nevertheless, until the field produces a comprehensive theory of cultural patrimony, cultural protection laws will be built on an inherently unstable foundation.