Culture, Cultural Rights, and the Right to Assemble

Culture, Cultural Rights, and the Right to Assemble Brian I. Daniels Anthropological Quarterly, Volume 83, Number 4, Fall 2010, pp. 883-895 (Article) Published by George Washington University Institute for Ethnographic Research DOI: 10.1353/anq.2010.0013 For additional information about this article http://muse.jhu.edu/journals/anq/summary/v083/83.4.daniels.html Access provided by University Of Pennsylvania (12 Nov 2013 12:27 GMT) SOCIAL THOUGHT & COMMENTARY Culture, Cultural Rights, and the Right to Assemble Brian I. Daniels University of Pennsylvania Abstract This essay examines the relationship between two rights guaranteed by the United Nations Universal Declaration of Human Rights: the right to culture and the right to free assembly. While the right to culture has been the focus of anthropological discussions, less attention has been paid to other mechanisms that may encourage cultural preservation. Drawing upon the example of an indigenous tribal constitution, I look to the voluntary association of interest groups as an alternative legal means for sustaining specific cultural practices and conclude with a discussion of their prospects and limitations. [Keywords: Culture, human rights, indigenous rights, civil society, United Nations, UNESCO] Anthropological Quarterly, Vol. 83, No. 4, pp. 883–896, ISSN 0003-549. © 2010 by the Institute for Ethnographic Research (IFER) a part of the George Washington University. All rights reserved. 883 Culture, Cultural Rights, and the Right to Assemble n human rights law, a “right to culture” exists among a suite of other rights, each guaranteeing, in their own way, to preserve some aspect of human dignity. A commonsense view of such a right is that it is an unalloyed good. Culture, under which we might include material arts and crafts, religious beliefs, ritual performances, dances, songs, language, socially constructed meaning, and human memory, provides the content for constructing personal and community identities (Silverman and Ruggles 2007). We presume that identity is a paramount virtue because of the pride it generates in local contexts and the cosmopolitan appreciation it enables. Yet its status as a fundamental human right is somewhat perplexing, given that culture does not appear to demand the same urgency as the rights to life and liberty, and that it can be a divisive force when conflicts emerge over ownership, stewardship, and exclusivity (Meskell 2009). However, even with these preliminary concerns, let us accept that it constitutes a human right for the purpose of raising questions about its status. From an anthropological point of view, what constitutes the “cultural” content of cultural rights is less straightforward. In human rights discourses, culture describes specific practices, beliefs, and customs that have been marked for protection out of the universe of what an anthropologist might call culture. This situation creates two terms, each with different meanings, but sharing the same referent (Jackson 1995). My aim in this essay is to explore what constitutes the “cultural” component of a right to culture, with the goal of examining what framework might permit such a right to exist in a meaningful way. In doing so, I will argue that a right to culture might be better conceived in relation to another basic human right: the freedom to assemble. The view that culture constitutes an inalienable human right can be traced to the United Nations Universal Declaration of Human Rights (1948). Specifically, Articles 22 and 27 conclude that “[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits” and that “[e]veryone, as a member of society, has the right to…the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” Subsequent international charters operationalized these principles. The Convention for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO 1954) established a set of protections for culture in wartime; the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property I 884 BRIAN I. DANIELS (UNESCO 1970) created a state-based framework governing the disposition of stolen artwork, antiquities, and other objects of archaeological, ethnological, and historical interest; and the Convention Concerning the Protection of the World Cultural and Natural Heritage (UNESCO 1972) provided a mechanism for acknowledging the cultural and natural sites deemed to be especially noteworthy by international experts. These documents legitimized the national ownership of culture, and allowed it to become isomorphic to a nation as a kind of naturalized patrimony and ideology. 1 At the same time, this process offered a procedural pathway for the work of ethnonationalist aspirations. Cultural claims moved to the center of indigenous human rights campaigns for sovereignty and recognition (Niezen 2003, Williams 1990), and the United Nations Declaration on the Rights of Indigenous Peoples (2007) enumerated a right to self determination, a right to practice and revitalize “cultural traditions and customs,” and a right to control “cultural heritage, traditional knowledge, and traditional cultural expressions.” 2 The consequence of rights discourses, then, has been to permit social communities of all scales to gain a very limited legal right and a broader moral claim to define, control, and, at times, assert ownership over culture. While this legal regime came about as a response to encroachment upon human rights during the post-World War II era, it has also resulted in the widespread use of culture to index the supposedly natural or authentic attributes of nations, ethnicities, and indigenous communities. Such primordial assertions tend to give anthropologists pause, and it would be well to approach the principle of cultural rights with some skepticism, even when embracing a broader call to social justice. An example helps to clarify this discussion. Consider the situation of the Native American tribes living along northern California’s Klamath River. One of these, the Yurok Tribe, promulgated a constitution declaring that it is their government’s task to “preserve and promote [Yurok] culture, language, and religious beliefs and practices, and pass them on to [their] children, [their] grandchildren, and to their children and grandchildren on, forever” (Yurok Tribe 1993:5). 3 While this sentiment is understandable given the century of American policies that called for the active subversion of Native American lifeways, it also confounds the anthropological notion that culture transforms to meet the demands of novel political and economic situations. Forever is a long time to guard culture, to keep tradition arrested and unchanging. Such a daunting task has not prevented the Yurok Tribe’s government from trying. Currently, it sponsors an active lan885 Culture, Cultural Rights, and the Right to Assemble guage revitalization program with the aim of resurrecting a moribund language with fewer than two-dozen fluent speakers. It has aggressively pursued the repatriation of traditional cultural objects from museum collections and partnered with the United States National Park Service to create a “Tribal Historic Preservation Office” (Daniels 2009). In 1984, its ritual leaders also reinstated a cycle of sacred dances tied to the lunar calendar (Buckley 2003:261-279). These efforts are indeed commendable, yet, in each of these instances, culture has become a specialized kind of performance different from the everyday experience of Yuroks. Focusing upon language, songs, dances, and the material arts as “culture” obscures the existence of other cultural facts that are either less convenient, deemed less important, or more mundane. Although many Native Americans among the Klamath River tribes express nostalgia for the cultural practices that have been lost, no one has ever suggested or explained to me in over a decade’s worth of questioning during campfire visits, picnics, and formal interviews, that they would return to their indigenous pre-contact lifeways. While most regret their tribes’ loss of political autonomy, modern conveniences like electricity, home appliances, and especially sanitation and indoor plumbing offer a compelling case for cultural change to those who remember growing up with outhouses and with the drudgery of intensive manual labor. As might be expected, these changes have not been without additional cultural impacts. While some domestic industries like basketweaving have been recast as crafts for an upscale art market, other practices have been overshadowed by a rural American sublime, where grocery stores provide easy access to prepackaged and preserved foods, and large discount chain retailers provide inexpensive clothing, consumer electronics, and massproduced toys, media, and goods for personal consumption. So far as I am aware, there is no outcry to protect these newfound practices as fundamental cultural rights. I do not mean to suggest that any of the Native Americans in the Klamath River region, or any other indigenous community for that matter, need return to living a quaint, pre-modern existence in order to be legitimate. Quite the opposite. Instead, I want to argue that indigenous communities, as an exercise of sovereignty, are themselves deciding what cultural practices deserve the designation of “tradition,” and thereby become a community’s culture. I also want to suggest that how these choices are made by indigenous communities may be useful for rethink886 BRIAN I. DANIELS ing the issue of cultural rights more broadly. Again, the Yurok Tribe’s constitution proves to be an instructive starting point. The Yurok Tribe is a formally chartered association of indigenous people, a corporate body sanctioned by the American state, which advocates for the protection of the tribe’s specific culture, and devotes its scarce resources to the effort. In promising to “preserve and promote [Yurok] culture, language, and religious beliefs and practices, and pass them on,” the tribal government guarantees that its members possess a basic right of access to Yurok culture. It also implies that the tribal government has a specific duty in regard to culture. What does it mean to have such a duty? While there is a great deal of academic and activist discussion about cultural rights, less attention has been paid to the duties of social actors who deploy human rights discourses in order to justify cultural preservation (see Hodder, this volume). At a minimum, any system of rights requires a corresponding entity that will identify and provide for the beneficiaries of a particular right (O’Neill 1996:131-136). This is as true for a right to culture as it is for other enumerated human rights, like a right to nourishment or a right to work; these rights can be met only insofar as there is a counterparty to provide food to the hungry, work to the jobless, or protection for a cultural practice. We might imagine any number of counterparties for the first two instances. In the case of the hungry, family members might give an extra meal, understanding that they have social obligations to their kin. Food banks and charities, which exist in order to assist those in need, might offer a much needed dinner. Many churches, temples, and mosques claim a religious duty for the same purpose. The welfare state has a role in the form of food stamps and subsidized groceries. Similar counterparties might exist for the unemployed. Family members could offer employment through their work or send monetary remittances. A network of colleagues and business relationships might connect the job-seeker to gainful employment. The welfare state also intervenes by offering unemployment benefits as a form of social security. We should also bear in mind that the precise remedies differ depending upon the social position of the rights-bearer, and political regime in which they are enmeshed. An impoverished woman in Zimbabwe, a government official in China, and a white, middle-class American man will likely find their “universal” human rights met in uneven ways. However, what is common across these hypothetical cases is that who has the ultimate responsibility to meet a basic human 887 Culture, Cultural Rights, and the Right to Assemble right has already been negotiated and determined (if it has been acknowledged as a right). Indeed, a right to food or right to work is of little use if it lacks the infrastructure to support it. But who undertakes a duty to sustain culture? Like any other right, culture requires social actors who have the obligation of preservation. As we have already seen, the Yurok Tribe is a sovereign indigenous nation, a special kind of association, which claims such a duty. In liberal democracies, the state may adopt some duties in this regard by promoting cultural festivals, sponsoring public commemorations and memorials, funding museums, and arresting development that would alter the historic or cultural character of a place (Kirshenblatt-Gimblett 1998, Lowenthal 1997). It may also find preservationist allies who encourage state intervention. Yet governments are unreliable precisely because of their democratic underpinnings. Competing interests can, and frequently do, intervene to sway the state. Developers often express hostility to historic or cultural preservation, state funding is subject to political whims and desires, and some xenophobic identity groups may agitate to deny the commemoration of rivals or ethnic minorities altogether. However, even opposition to cultural preservation should remind us of the power of politics grounded in common interest. Associations formed with the specific purpose of protecting a cherished piece of culture operate through similar means. They find their origins and purpose in assembling culture and a set of social relationships around it. Bruno Latour (2005) calls this work Dingpolitik— the aggregation of interest around objects, facts, arguments, and things. Coming together to create novel identity groups, these organizations are both a characteristic and an achievement of liberal civil society. Civil society is a term that resists precise definition, but one that is useful for understanding the vital role of non-state social actors. It describes the political sphere between government and the market, where individuals organize, charter institutions, and receive legal protections to carry out their work on behalf of the “public” (see Walzer 1991, Seligman 1992, Ehrenberg 1999). Channeling philanthropy, social action, and communal activities, these kinds of organizations have a long history in the West, intervening in arenas that the state will not. We can imagine social institutions coming into existence for the purpose of promoting a specific kind of culture. Indeed, the Yurok Tribe’s formal constitution required it to do so, and it is joined by any number of associations, ranging from NGOs that protect archaeological sites in Eastern Europe, to First Nations language 888 BRIAN I. DANIELS schools in British Columbia, to dance troupes hailing from Ireland, to local museums retelling apartheid’s manifold histories in South Africa. All of these organizations exist to promote a specific vision of a culture. They sustain literal communities of willing members, associations of people organized and often legally incorporated for the specific purpose of supporting a way of life. In this sense, they are defined by their self-imposed duties—the commitments undertaken willingly by their members or laid out in their governing charters—to culture. We might reasonably conclude that a right to culture exists so long as a counterparty is able and willing to organize in order to sustain it. Associations like these also find support in human rights law. Like the right to culture, the freedom to organize is recognized by the United Nations Universal Declaration of Human Rights. Article 20 guarantees “everyone” the right to “peaceful assembly and association,” and grants individuals the ability to opt out of a social group, assuring that “[n]o one may be compelled to belong to an association” (UN 1948). This right is particularly robust and is often treated as fundamental aspect of good democratic governance. It protects the right to organize around a common goal, to assemble political entities for advocacy within the public sphere, and, under most state political systems, for these entities to receive some limited rights and recognition as social actors themselves. When oriented around cultural concerns, they can be employed in ways that allow people to preserve their traditions, to express their identities in a public way, to gain political or economic advantages, to fight for or against discrimination, to gain the support of their fellows in a particular cause, or to express and act upon deeply held ethical or religious commitments (Gutmann 2003). In this way, the right to culture is bound up in the issue of what constitutes the good life—a question, as anthropologists are well aware, that receives different answers from every corner of the globe. This is the bane of rights, as well as its promise: rights discourses and programs cannot answer every possible local injustice, but they can point to the enabling conditions and restraints of a good life in a particular setting (Ivison 2008). In the right to freely assemble around a specific cultural tradition, we can envision, and perhaps even realize, the civil society needed for human beings to flourish (see Nussbaum 1997). This is not to say that the freedom to assemble is without difficulties as a model for sustaining culture. There are important caveats that require further explanation. Notably, in principle, there are no restrictions upon 889 Culture, Cultural Rights, and the Right to Assemble the right to create new social institutions. Some of these organizations might not be entirely altruistic, and instead look for ways to translate culture into marketable products. For-profit ventures can quickly transform knowledge and traditions into profitable intellectual property (Brown 2004, Coombe 1998). Culture can be packaged in many forms, ranging from tourist experiences, like those offered by the Maasai, to specific legal and economic rights guaranteed by the state, like casino gaming to Native American tribes in the United States. These situations connect ethnogenesis and enterprise, allowing culture to become the entitlement that permits an identity group’s enrichment. In effect, identity can act as marketable brand that blends ethnic groups and corporations into each other. John Comaroff and Jean Comaroff (2009) describe this global phenomenon as “Ethnicity, Inc.,” a situation exacerbated by inequality, neoliberal promises of equality and recompense, and global flows of capital. But the incorporation of identity also threatens a violence of its own making. By producing a new discourse of authenticity, it encourages new exclusions and might even exacerbate the inequalities that sovereignty and ownership over cultural knowledge were prescribed to solve (see Amit and Rapport 2002). This critique is powerful; yet we should not presume that capitalist encroachment is an inevitable outcome of civil society. Organizing to protect a tradition might be an act of resistance to the market, as well as an enabler of it. Identity groups must move within capitalist markets and state structures, respond to them, and engage in activities that support the livelihoods of their members. The results of free assembly are, therefore, varied and diverse, and can enable as well as antagonize civil society. Because culture can easily be commoditized, we need to explore the privileges, immunities, and limitations that come with the organization of identity groups. If they promote a vision of the good life, how might we assess what it constitutes? What is its relation to civil society at large? The difficulty comes when we recall that identity groups both aid and impede equal regard for individual rights. They can also promote negative stereotypes, incite injustice, and frustrate the pursuit of democratic initiatives. They can also become a mechanism for recognizing and distributing rights in multicultural democracies in potentially unequal ways (Hale 2005, Povinelli 2002). One solution is to deny associational rights to any group that promotes a culture incompatible with civic equality (Gutmann 2003:62). While this position is an attractive means of restricting the claims of a group that has organized to promote neo-Nazism in Germany or cross-burnings of the Ku Klux Klan in 890 BRIAN I. DANIELS the American South, the issue of what constitutes civic equality is a question that we are only beginning to theorize. We are left with the fraught task of weighing uniform treatment against the importance of cultural production. Charles Taylor’s (1992:73) warning seems especially relevant: we are very far from determining the relative worth of a culture to the public sphere. We need to know far more about the stakes—to identity, to inequality, to cosmopolitan imaginaries, and to local sensibilities—that come with the associations that claim to protect culture. Another caveat is familiar, as it has already been raised in the context of cultural rights. Given the grave difficulty in pursuing legal redress for even the most heinous human rights violations (see Stacy 2009), will violations against the right to free assembly garner any more attention than violations against cultural rights? Whether an infringement upon free association reaches the same threshold as basic rights to life, liberty, and personal security remains to be seen, but there is reason to be guardedly optimistic. Most liberal states guarantee a minimal right to organize interest groups as a component of human dignity (Taylor 1992). While the reliance upon associational rights often means engaging with the neoliberal structures that sustain state governance, when people organize themselves in order to insist upon the endurance of a particularly cherished piece of culture, the ethos of rights and the practice of daily life become intertwined by necessity. And this is a process that deserves our attention as scholars and as collaborators with the communities with whom we work. In this essay, I have laid out a brief case for viewing a right to culture as a dependent upon the right to free assembly. There are a number of advantages to this stance. It grants identity groups the agency to construct culture as they understand it and emphasizes the importance of culture as a contemporary construction. It conceives of cultural rights within a powerful and already existing legal structure and assigns rights to social groups that organize for advocacy. It also places culture into a framework that promotes its preservation as a vital component of civil society in a multicultural democracy. To see the success of how associations can and do promote culture, we do not need to look far afield. Our professional bodies—the American Anthropological Association (AAA) and the Society for American Archaeology (SAA)—rely upon the right to freely associate for their incorporation. In a structural sense, they are similar to other organized identity groups, like the Yurok Tribe, which adopt a duty to promote culture. 891 Culture, Cultural Rights, and the Right to Assemble Each professional organization is explicit in the duties that their members should hold. The AAA Code of Ethics (1998) declares that anthropologists bear a responsibility to the “lives and cultures” “with whom anthropological researchers work and…study.” At a minimum, this duty entails the avoidance of doing “harm or wrong” to a group, respect for that group’s “well-being,” and work for the “long-term conservation” of cultural resources. The SAA Principles of Archaeological Ethics (1996) makes similar claims. Archaeological research “requires an acknowledgment of public accountability and a commitment to make every reasonable effort, in good faith, to consult actively with affected group(s), with the goal of establishing a working relationship that can be beneficial to all parties involved.” Archaeologists are said to possess a responsibility “to work for the long-term conservation and protection of the archaeological record by practicing and promoting stewardship.” Anthropologists and archaeologists, then, share a duty to recognize culture as a part of their professional and scholarly practices. Implicit to these statements is an assumption that culture is of such value to civil society that a body of academics should be devoted to its study and, ideally, its perpetuation. It is not a surprise that anthropologists would be concerned with the degree to which social justice can be achieved on a global scale (see Merry 2006), or that the field would fixate upon cultural rights as a topic of central importance. Culture is the construct around which the discipline has been organized, and a commitment to it is part of the boundary work that defends the field’s intellectual autonomy and possibilities for collaboration and advocacy. Yet focusing upon culture can be ultimately disabling. Failing to attend to the structure of social organizations—either as a topic of theoretical analysis or as a pragmatic means of advancing human rights goals—would mean missing the potential found in other defined human rights. If our goal is to emphasize how culture is a crucial aspect of the human experience, then protecting the institutions that sustain it in the first place seems like a logical beginning. When asking where a right to culture ought to reside, the organizations that promote specific kinds of culture merit much closer attention. 892 BRIAN I. DANIELS ACKNOWLEDGEMENTS My thanks to the Stanford University Human Rights Workshop for the opportunity to work through the issues presented here. I am grateful to Neil Brodie, Ian Hodder, Duncan Ivison, Richard Leventhal, Lynn Meskell, Peter Schmidt, and Helen Stacy for their feedback and support, to an anonymous reviewer for their insightful suggestions, to Sasha Renninger and Danielle Daidone for bibliographic assistance, to Nathan Daniels and Kimberly Hahn for editorial assistance, and to the Wenner-Gren Foundation, who funded my ethnographic research in California’s Klamath River region. ENDNOTES 1 The nationalist “invention of tradition” has been adopted by “universal museums” in the global north as a justification to deny the repatriation of objects to their countries of origin (e.g., Cuno 2008). 2 Quoted excerpts come from Articles 1, 11, and 31 of the United Nations Declaration on the Rights of Indigenous Peoples (2007). 3 This specific language is now widespread across the United States, appearing in the legal constitutions of Oregon’s Confederated Tribes of Siletz Indians (1979), Alabama’s Poarch Band of Creek Indians (1985), and in the stated goals of the Chippewa Cree Tribe’s Cultural Resource Department (2009). REFERENCES American Anthropological Association. 1998. “ Code of Ethics of the American Anthropological Association.” Accessed from http://www.aaanet.org/committees/ ethics/ethcode.htm on January 1, 2010. Amit, Vered and Nigel Rapport. 2002. The Trouble with Community: Anthropological Reflections on Movement, Identity, and Collectivity. London: Pluto. 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Yurok Tribe Constitution. Klamath: Yurok Tribe, Inc. 895