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Valuing Native Culture: A Legislative Proposal

By: Lawrence Rosen

September 7, 2021

In my first-year of law school Professor (later Federal Court of Appeals Judge) Richard A. Posner picked me out of a hundred and fifty students to ask, “Mr. Rosen, what is your life worth?” I knew what I was supposed to say: that we could compute my future earnings based on education and professional accomplishment, assess my current living standard and project compensation for survivors accordingly, and that actuarial tables and medical statistics were but the marketplace’s invisible hand revealed. However, I responded: “In what cause?” When Posner persisted in trying to elicit a basis for actual numbers I found myself recalling a passage from my favorite legal text, Lewis Carroll’s Alice in Wonderland (Chapter XI – Who Stole the Tarts?): “‘Write that down,’ the King said to the jury, and the jury eagerly wrote down all three dates on their slates, and then added them up, and reduced the answer to shillings and pence.”1 Dr. Johnson was equally skeptical about setting a value on a life: “Among the many improvements made by the last centuries in human knowledge, may be numbered the exact calculations of the value of life; but whatever may be their use in traffic, they seem very little to have advanced morality. They have hitherto rather been applied to the acquisition of money than of wisdom.” Samuel Johnson, The Rambler No. 71 (Nov. 20, 1750). Clearly, I thought, Posner’s economic approach was trying to measure incommensurables, to reduce one kind of thing to another through the universal solvent of money, and that his was but another example of the great American need to quantify, if not indeed monetize, everything.

In one sense the monetary valuation of a life is absurd, while in another it is perfectly understandable. It is absurd because the basis of valuation, when portrayed as immanent, is in fact deeply cultural: No universal theory of economics or logic can be relied upon to alchemically convert injury into dollars or pounds or euros.2See generally, Cass Sunstein, What Price is Right?, N. Y. Rev. of Books, June 10, 2021, at 27. In some instances the most appropriate compensation may be a heartfelt recognition of the wrong; in others, a demonstration that the conduct leading to the death will not be repeated. Indeed, if there is a moral to my encounter with Posner’s inquiry as to the value of my life it may be that an answer purporting to be a matter of total neutrality and rational calculation is, in fact, at once arbitrary, societally entangled, and (notwithstanding claims to utter objectivity) revelatory of the cultural assumptions on which any valuation depends. This is especially true where a history of vexed dealings colors both ownership and evaluation. And nowhere is this truer than in assessing the value of items produced by native peoples whose well-being is bound up in repatriating those material vehicles of their identity that currently lie in the hands of outsiders.

I. Buying into Monetization

Monetization does not mean that we cannot have multiple ways of thinking about a subject even when we measure only one aspect of it against some economic indicator. To take a somewhat extreme example: For societies in which bloodmoney takes the place of punishment it may be the avoidance of continual feuding, the amelioration or substitution of intense emotions, or a direct challenge to the ideals of forgiveness that take precedence over monetary compensation.3See, e.g., Yazid Ben Hounet, Cent dromadaires et quelques arrangements: Notes sur la diya (prix du sang) et son application actuelle au Soudan et en Algérie, 131 Revue des Mondes Musulmans et de la Méditerranée (2012); Daniel Pascoe, Is Diya a Form of Clemency?, 34 B. U. Int’l L. J. 149 (2016). One may even ask whether tort law compensation does not act as a partial, if somewhat disguised, version of bloodmoney payment. In such societies, people may prefer to limit centralized power by leaving the choice of punishment or reparation, hedged round by local custom, in private hands.4See, Arzoo Osanloo, Forgiveness Work: Mercy, Law, and Victims’ Rights in Iran (2020). Indeed, differences of valuation, broadly conceived, can mark the fault line between cultures. For example, in 1883, when the U.S. Supreme Court ruled that an Indian tribe, in the exercise of its inherent sovereignty, was free to punish a killer by requiring him to support the deceased’s family, Congress took the power of deciding such matters away from the tribes, believing that compensation for murder was barbarous and that the civilized thing to do was to hang the offender by the neck until he is dead.5 Ex Parte Crow Dog, 109 U.S. 556 (1883). See generally, Sidney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (1994).The Congressional action was first codified in 1886 as the Seven Major Crimes Act of March 3, 1885, 23 Stat. 385, and is now embodied in 18 U.S.C. 1153.

In many societies – especially small-scale tribal groups – objects are vital not as commodities but for the relationships of exchange and prestige they symbolize, and removal of the objects from local interplay is injurious to personal identity, social solidarity, and a felt sense of order.6See, e.g., the New Guinea examples in Debbora Battaglia, Retaining Reality: Some Practical Problems with Objects as Property, 29 Man, N.S. 633 (1994); and Simon Harrison, From Prestige Goods to Legacies: Property and the Objectification of Culture in Melanesia, 42 Comp. Studies in Soc. and History 622 (2000). So long as we do not imagine that translation into dollars is necessitated by nature or the capacity of market forces to reach the uniquely correct result and that any compensatory scheme is deeply connected to the history and socio-cultural system in which it is embedded, conversion of harm to money is not to be scorned out of hand. But when we do go about evaluating and equilibrating incommensurables, whether in civil or criminal matters, the questions that necessarily arise include: What common denominator can be used? What cultural assumptions are incorporated in our belief that the exchange of money or punishment is the most appropriate response to harm? If money is not the only gauge for valuation other remedies are available, including apology, forgiveness, rehabilitation, altered safety and marketing practices, or rituals of purification and reinclusion. Each takes on a distinctive cultural and emotional tone as the meaning of each remedy takes on local coloration.7“For example, in a focus group conducted to test alternative ways to estimate willingness to accept compensation for the environmental damage caused by the Exxon-Valdez oil spill, a young woman leaped to her feet and angrily shouted, ‘You mean to say I’ve been raped and you think there is some amount of money that will make me feel it didn’t happen?’ Subsistence and barter-based indigenous peoples might well shout the same lamentation.” Robert Snyder, Daniel Williams, and George Peterson, Culture Loss and Sense of Place in Resource Valuation: Economics, Anthropology and Indigenous Cultures, in Svein Jentoft, Henry Minde, and Ragnar Nilsen, eds., Indigenous Peoples: Resource Management and Global Rights 107, 113 (2003).

Compensation may thus take various forms. For example, a number of non-Western legal systems make use of a right of pre-emption. In some Muslim countries when a property comes up for sale the right to purchase it may be accorded a neighbor because they may need to serve as protectors against communal violence, helpmates in daily life, a likely source of spouses for one’s dependents, and witnesses or intermediaries in a legal dispute. The price may have to match that paid by any third party and litigation may be needed to force the owner to turn over the property to the preemptor, but the importance of neighbors in such a system still takes precedence over subsidiary concerns.8On the preemption rights of neighbors, see A. A. Oba, Islamic Law as Customary Law: The Changing Perspective in Nigeria, 51 Int’l and Comp. L. Q. 817 (2002); Alkamawa v. Bello and Anor, [1998] 6 S.C.N.J. 127 (Nigeria); Farhat J. Ziadeh, Shufʻah: Origins and Modern Doctrine, 34 Cleveland State L. Rev. 35 (1985-86). There is a common Arab saying, similar to that found in Proverbs 27:10, that “your neighbor who is nearby is more important than your kinsman who is far away.” In other cultures, a portion of the monetary penalty for a marital dispute may be imposed even on the spouse found not responsible in the belief that domestic tranquility will be more likely if the offending party does not have reason to take the loss out on the partner. So, too, what constitutes harm, particularly as balanced against another’s freedom of expression, is quite variable: Someone whose musical practicing is too loud for a neighbor or whose local public utility impinges on the use of an adjacent property raises troubling questions of freedom versus compensation.9See generally, Davina Cooper, Far Beyond ‘The Early Morning Crowing of a Farmyard Cock’: Revisiting the Place of Nuisance within Legal and Political Discourse, 11 Social & Legal Studies 5 (2002). Similarly, an object of collective value may be within the control of its owner but barred from sale outside the group identified with it. And, of course, a property may be taken for a public purpose by the government in a forced sale, the fair market value paid at that time being different from what the owner may have hoped to gain in the future.

If even money can, therefore, stand for a relationship, a valued avenue to peace, or a symbol of collective identity or personal self-worth, the way in which a society fashions its translation from ‘object of engagement’ to ‘object of exchange’ thus teases up a whole series of interconnected social and cultural expectations. Moreover, in the fraught history of native-colonial encounters any scheme must balance the morally commended with the practical if the goal is to ameliorate rather than exacerbate past errors. Before considering possible legislation with such an aim it may, however, be helpful to look at a few examples of the special circumstances that may apply to cases involving native groups.

II. The Native-Colonial Backdrop

The situation of native peoples is indeed a special case, one that affects both legislative and judicial approaches to their intellectual and cultural property interests. Not only were hundreds of treaties signed with Native American groups, to take the American example, but the U.S. Supreme Court from early in the 19th century recognized the tribes as sovereign entities notwithstanding the relinquishment or divestment of some of their powers. Treaties were, however, repeatedly violated by white America and compensation schemes have rarely succeeded. At present in the U.S. over five hundred tribes are federally recognized while others are in the process of applying for inclusion.

American indigenous groups frequently seek access to a sacred site located outside of tribal lands recognized by the Federal government. But monetary compensation or even land swaps are often deemed inappropriate by the natives. The award of millions of dollars to the Sioux for their sacred Black Hills has never been touched by the tribe because the land itself is regarded as inalienable.10See generally, Edward Lazarus, Black Hills/White Justice: The Sioux Nation versus the United States, 1775 to the Present (1991). See also, The Indian Claims Commission Act,  ch. 959, 60 Stat. 1049 (1946) (codified as amended at §§70-70w (1976)), repealed by Act of Oct. 8, 1976, Pub. L. No. 94-465, 90 Stat. 1990. And ecological concerns, whether it is opposition to pipelines running under tribal lands or lax pollution standards affecting tribal enterprises, often displace mere compensation as an acceptable resolution. Efforts by non-native governments to restrict the practice of traditional medicine, law, or the position of elders or women are similarly regarded as incommensurable with monetary rewards.

From the natives’ point of view the history of depredations by whites and their governments constitutes the indispensable backdrop to any scheme affecting tribal interests. Tribal claims to an object of traditional design or exclusive rights to a valuable plant have occasioned suits for the protection of the collectivity’s interests. And while some efforts have been made to return native remains and artifacts numerous objects of native cultural property remain outside of the groups’ control.11The key legislation here is the Native American Graves Protection Act (NAGPRA), Pub. L. No. 101-601, 104 Stat. 3048 (1990). In this regard formulating an approach to the cultural property rights of indigenous peoples necessarily teases up a number of concerns no legislative or judicial proposal can afford to ignore.12On the failure of such approaches see, e.g., William Fisher, The Puzzle of Traditional Knowledge, 67 Duke L. J. 1511 (2018); and Kathryn Moynihan, How Navajo Nation v. Urban Outfitters Illustrates the Failure of Intellectual Property Law to Protect Native American Cultural Property, 19 Rutgers Race & the Law Rev. 51 (2018).

Realism, particularly in the American context, commends recognition that to a considerable extent money is the solvent through which exchange takes place, and it is therefore naïve to expect that objects of indigenous origin can simply be pried loose from owners without any compensation. Even if ‘all property is theft’ a workable solution to the return of native objects will require some exchange. To fairly engage both material and cultural concerns – and to align them with existing schemas of rights and obligations – requires a balancing act, though not one of simply reducing all of the variables to shillings and pence. A legislative program that achieves such a balance may at the very least be more of a guide than a solution and at most a framework within which both parties and adjudicators can weigh what can be monetized with what is regarded as inalienable. Moreover, legislators, unlike judges, may base their laws on moral precepts and historic wrongs, matters that are especially appropriate where native people are involved. The following, therefore, is a proposed statute intended to speak to these concerns.

III. Legislative Proposal

IV. Legislative Proposal Comments

Several comments on these provisions are in order. Definitions always raise the difficulty of either being too specific or too general.13Critics of NAGPRA point to the vagueness of its terms. For example, cultural patrimony is defined as “an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe.” The Biden administration’s Interior Department, in recommending changes to NAGPRA, has stated that one goal is to: “Streamline existing regulatory requirements by eliminating ambiguities, correcting inaccuracies, simplifying excessively burdensome and complicated requirements, clarifying timelines and removing offensive terminology in the existing regulations.” Zachary Small, Push to Return 116,000 Native American Remains is Long-Awaited, N. Y. Times, Aug. 6, 2021, https://www.nytimes.com/2021/08/06/arts/design/native-american-remains-museums-nagpra.html#:~:text=museums%2Dnagpra.html-,Push%20to%20Return%20116%2C000%20Native%20American%20Remains%20Is%20Long%2DAwaited,by%20museums%20and%20other%20institutions. In an attempt to err on the side of greater inclusiveness the characterization of eligible groups and their relationships to overarching governments is kept intentionally wide, owing in part to the depredations of states in the past and the value of native stewardship in the present. Instead of focusing on direct compensation for harm done to native peoples the proposed statute concentrates on making objects of indigenous importance available to the originating groups in an atmosphere of mutual consideration. The statute focuses on objects rather than abstract intellectual property. However, if an idea, process, or version of a design, such as a harvestable plant extract, exists in a distinctive form associated with the creative input of an indigenous group the statute is intended to include such embodiments.

The concept of a right of preemption for fair market value underscores both the priority accorded native groups to restoration of their cultural objects and fair market valuation notwithstanding the history of present ownership. Real property (land, buildings, etc.) is not included in this statute.14Statutes providing for land purchases include the Land Buy Back Program for Tribal Nations (purchase of fractionated shares, pursuant to Cobell v. Salazar, 679 F.3d 909 (D.C. Cir. 2012)) and Claims Resolution Act of 2010, 124 Stat. 3064. In a number of instances, Native Americans have bought back property on the open market. See, Colin Woodard, Passamaquoddy Tribe Reacquires Island Stolen Nearly 160 Years Ago, Portland [ME] Press Herald, May 20, 2021, https://www.pressherald.com/2021/05/17/passamaquoddy-tribe-reacquires-island-stolen-more-than-150-years-ago/. For the case that land should be included as cultural property, see, Lindsey L. Wiersma, Note, Indigenous Lands as Cultural Property: A New Approach to Indigenous Land Claims, 54 Duke L. J. 1061 (2005). The law would thus cover both public and private sellers since many objects are in the hands of individual collectors and, whether they are of dubious or legitimate provenance, are of vital concern to the identity and well-being of the indigenous group. The provision covers any resale, including that of an object initially received as a gift. The provisions for notice, which may be worked out in the regulations relating to the statute, may necessitate formation of a vehicle similar to The National Stolen Art File or The Art Loss Register, so both holders and sellers, who will be expected to exercise due diligence, are aware of the implications of any offer for sale in which they may engage. Many groups may be unable to afford or curate objects and are willing to have museums or other non-profit institutions act as guardians for the objects, hence the capacity to assign their right of preemption to such institutions. Because many objects were lost to indigenous groups by government action or inaction, some responsibility for their initial loss must be borne by that government, hence the appropriateness of their assistance in funding the repatriation of such objects. If representatives are chosen to set the price of the object they may be from any background, though experts in the valuation of such objects should be favored. Finally, in alignment with developing international standards, a form of droit de suite will help to allay potential conflict between an artist and the artist’s own group, both of whom have had an interest in the production of a given object, believing, with Virginia Wolf, that “Masterpieces are not single solitary births; they are the outcome of many years of thinking in common, of thinking by the body of the people, so the experience of the mass is behind the single voice.”15Virginia Woolf, A Room of One’s Own (1957) [1929]. See also, Bulun Bulan v. R & T Textiles Pty Ltd (Federal Court of Australia 1998) 157 A. L. R. 193 (native artist has fiduciary duty to his community for copyrighted work he based on tribal designs). On the movement by museums to attribute native works of art to individual artists, see, Judith H. Dobrzynski, Honoring Art, Honoring Artists, N.Y. Times, Feb. 6, 2011. California’s droit de suite statute was upheld only for in-state transactions. See, e.g., Sam Francis Foundation v. Christie’s Inc., 784 F.3d 1320 (9th Cir. 2015).

Conclusion

There are several reasons for addressing these issues through federal legislation rather than leaving matters to existing statutes or case law. If you accept the premise that valuation is possible you may be forced to accept the conclusion that even life is convertible to dollars and cents. In such instances the courtroom is an appropriate venue for settling such matters. But for so special a case as indigenous peoples who have been subjected to colonial depredations and whose place in the body politic and imaginary of the dominant population remains ambiguous at best and racist at worst, it may very well be that settling ownership rights and valuations are best left to legislatures rather than courts. Legislatures are not only permitted to speak to the moral sentiments of a nation but their actions may properly be based on a degree of arbitrary choice, as opposed to courts who, in such policy-heavy circumstances, cannot appear to be independently concerned by issues of morality and historic injustice. This is hardly to suggest that legislatures are either wise or fair in their treatment of native peoples. But at least if matters are approached legislatively one may be able to, for example, offer native peoples a preemptive right to buy in artifacts that originated with them – perhaps even with some government support (thus effectively resulting in a discount from fair market value and an indirect form of reparation).

One can rationalize such statutory assistance in a variety of ways – as a moral requirement that we care for each other’s patrimony, as compensation for past harm, or as a practical measure for insuring native stewardship. Indeed, it is on such grounds that other legislative programs have been designed as, for example, those that favor the hiring of native peoples or offer protections for the marketing of their artistic productions.16Preference may be given tribes in such areas as hiring or marketing. See, e.g., Morton v. Mancari, 417 US 535, 554 (1974) (“The preference, as applied, is granted to Indians not as a discrete racial group, but rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA [Bureau of Indian Affairs] in a unique fashion.”); see also, The Indian Arts & Crafts Act, 104 Stat. 4664 (1990) (specifying penalties for faking Indian handcrafted goods); William J. Hapiuk, Jr., Of Kitsch and Kachinas: A Critical Analysis of the Indian Arts and Crafts Act of 1990, 53 Stan. L. Rev. 1009 (2001).

The proposed statute recognizes that unless some payments change hands – unless some valuation is made of the invaluable – no restoration of native objects may take place. Realism demands that some compromise be made. But if the history of the world’s indigenous peoples suggests anything it is that there are indeed values – and hence valuations – that resist simple monetary equivalence, and a significant degree of deference to indigenous forms of evaluation and current ownership of indigenous heritage must be forthcoming in order that progress may be made in constructing an environment of mutual trust. Legislation, such as that proposed here, would constitute both a practical step in that direction and a timely moral statement.


Lawrence Rosen, Cromwell Professor Emeritus, Princeton University and Adjunct Professor Emeritus, Columbia Law School.

Suggested Citation: Lawrence Rosen, Valuing Native Culture: A Legislative Proposal, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).