Susanne Kempf

1 Introduction

For the past three decades, anthropology has been severely criticized by third world and indigenous voices. Indigenous groups in the United States repeatedly point out that research results often do not benefit the groups studied, and often are not communicated to them. Mihesuah states: American Indians are weary of everybody else profiting from the commercialization of their cultural heritage. They are suspicious of anyone who wants to write about them for fear that secret or sensitive information not intended for outsiders might be published. Since there are over 500 federally recognized American Indian and Native Alaska communities in the U.S., there exists a wide range of approaches concerning the use, appropriation, and control of cultural heritage. Anthropologists have reacted to indigenous groups' criticisms by focusing on issues of voice, authority, and authorship. As Deloria points out, this emotionally charged debate is characterized by concern over authority and definitions of who claims the right to represent American Indians. Economic factors also play an important role for American Indian tribes who believe that researchers make a substantial monetary profit from tribal knowledge.

The 1990 Native American Graves and Repatriation Act forced archaeologists to rethink their epistemological basis. However, most visual anthropologists have paid little attention to issues of repatriation and ownership of visual documents. Indigenous groups have realized that control over representations of their reality and images of themselves can be a source of social, economic, and political power. They also have the knowledge and technology to take this control. With this in mind, the role of ethnographic filmmakers needs to be discussed, not only with regard to epistemology but also to praxis. In order to reinvent visual anthropology, the discussion that takes place between academics and the groups studied, must avoid abstractions and theoretical paradigms that obfuscate these issues.

First, I will examine the legal debate concerning the repatriation and protection of American Indian's cultural heritage. Then, I will present some examples of how American Indian groups in the Southwest have attempted to safeguard tribal knowledge and gain rights over images released into public domain. Finally, I will discuss the ethical considerations and consequences for research approaches, publication, and the storage in archives.

2 Legal Debate

Whereas Western science, corporations, and the entertainment industry are protective about their intellectual property, it is still difficult for indigenous groups to exercise control over intangible aspects of their cultural heritage. Historically, owners of intangible property have always received less protection than owners of tangible property. Today, the justification of protecting intellectual property is debated. Indigenous groups' concerns regarding repatriation and protection of their cultural heritage are reflected in various international documents, such as the 1995 Final Report of the United Nations Working Group on Indigenous Populations. This report recognizes that documentation in writing as well as in film, photographs, videotape, or audiotape are part of the cultural heritage of indigenous groups. Some of the Principles and Guidelines for the Protection of the Heritage of Indigenous People specifically address researchers and scholarly institutions, by asking them to: a.) provide indigenous groups with documentation of cultural heritage, which they may have in their custody b.) return all elements of indigenous peoples' heritage to the traditional owners upon demand, or to obtain formal agreements with the traditional owners for the shared custody, use and interpretation of their heritage, and c.) not to sell any items of heritage without first obtaining permission from the traditional owners. However, cultural heritage has yet to receive legal protection under U.S. law. The legal indigenous cultural heritage abstractly focuses on Western assumptions of property and individualism, based on 18th century European philosophy concerning social progress, as being generated by individuals' innovations. Native Americans are forced to protect their cultural heritage by adopting legal categories that may be foreign to their own cultural concepts. By trying to change the dominant legal and power structures, Native Americans must use language conventions that perpetuate the very system and values that they oppose. While intellectual property rights, which cover copyright, patent, and trademark laws, are most pertinent to making legal claims to cultural heritage, property rights pose many problems for Native American tribes. U.S. intellectual property laws are based on individual creativity, on the originality of the work, and only protect expressions based in tangible or permanent media. Communal ownership is not recognized. Knowledge that is already in the public domain is not protected. Western concepts of property do not acknowledge that indigenous groups may not demarcate rigidly between ideas or expressions, oral or written forms, intangible or tangible works, and personal or communal property. Anthropologists confound the problem of protecting cultural heritage because they turn sensitive information into tangible media and make it part of the public domain. To complicate matters further, the concept of cultural property used in our legal system is based on "fixed" traditions that link the past to the present. Culture is seen as having definable limits, identifiable traits, and idealized pasts. This essentialist view turns cultural heritage into an objectifiable entity and does not accommodate the emergence of new cultural heritage.

Interestingly, indigenous groups in the U. S. employ similar arguments to protect their cultural heritage and are, therefore, accused of essentializing. While "essentialism" is often seen as negative, bell hooks argues for the usefulness of this concept for African-Americans because it demonstrates "... the way that black identity has been specifically constituted in the experience of exile and struggle". However, hooks distinguishes 'black identity' from "... the idea that there is a black 'essence' ". Similarly, American Indians seem to invoke a 'tribal identity' in their arguments for the repatriation and protection of cultural heritage. However, this identity may already be shaped by Western ideas. But, arguing for anti-essentialism, ignores how identifying with and being identified as a member of a minority group shapes every-day experience. Alexander and Mohanty show how the postmodernist dissolution of race makes it difficult to claim the experience of racism. Thus, anti-essentialism is a luxury only open to privileged groups. Deconstruction and pluralism obscure power structures and only serve to reproduce White male knowledge and power.

3 Approaches by American Indian Tribes in the Southwest

Ownership of cultural heritage is tied to issues of tribal sovereignty and economic independence. American Indian tribal governments employ U.S. laws to protect their cultural heritage and also exercise their own sovereignty by passing laws and ordinances that govern conduct within their jurisdiction. This includes restricting ethnographic, archaeological, and other research that entails asking tribal members to divulge their knowledge. Advisory groups composed of elders and cultural specialists review research proposals and cultural heritage ordinances, determine types of research permits, specify whether research results may eventually be disclosed, published, or reproduced, and determine penalties for the profit-oriented use of resources. In the Southwest, the Hopi, Navajo, and San Carlos tribes repeatedly criticize researchers who publish sensitive information. They also have tightened research guidelines, and now monitor approved research, and control the information intended for release. Previously, the repatriation of burial remains has been what was crucial. Today, the appropriation of Native American oral history and stereotypical representation in writing, film and video is most important. Visual images are a contested territory. Native Americans now employ property right laws to protect many aspects of their heritage. In the Southwest, for example, a Hopi tribe has attempted to limit academic researchers' use of historic photographs and documents. The White Mountain Apache seek to acquire and preserve photographs and documents that relate to their history and culture. The Santo Domingo Pueblo filed a lawsuit against a local newspaper for photographing tribal dances without permission. The San Ildefonso Pueblo asked a filmteam invited by a Pueblo member, but not by the Pueblo government, to stop filming, but allowed a filmteam invited by the Pueblo government to stay. The Laura Gilpin Estate currently faces a lawsuit because the photograph "Navajo Madonna" was published without sharing the proceeds. If it is still impossible to stop the publication of cultural material, American Indian communities want to at least share in the economic benefits.

Native American tribes need to provide the academic community with more guidelines for the appropriate use of their cultural heritage. Tribal governments must consider the following questions when protecting their cultural heritage: Who defines their cultural heritage? What is defined as their cultural heritage? Are intellectual property rights held by the tribe, or individual members, or by both? Who should be compensated? Do they want comprehensive inventories of the visual documentation of their cultural heritage in the custody of academics? Who decides the uses and interpretations of these documents? American Indian governments must also recognize that the restrictions may limit the rights of individual tribal members who are willing to share their knowledge with outsiders. Tribes also must determine policies that control access to collections of documents, recordings, and other artifacts, and decide whether tribal members must also obtain access permission. Restricting access to archives may be difficult to achieve because federally funded archives are bound by U.S. law and must provide access to whomever presents them with a Freedom of Information Act request. Tribes must review the collections and determine what information they want classified as secret, sacred, and sensitive in archives that are willing to make access restrictions. In the end, however, it may be up to U.S. lawmakers to establish whether researchers must ask for tribal permission before using their documents.

4 Ethical Considerations and Consequences

Anthropologists must find out who has the authority to approve research and to negotiate the use of cultural heritage in a tribal community. According to the AAA code of ethics, above any duty she/he has to data collection or preservation, an anthropologist's obligation is to the people studied. However, conflicts still arise because researchers perceive their work as an individual creation. Social scientists claim academic freedom, which ignores that this "right" is culturally based and is a privilege in today's world. Welch demands that Native American communities should have the primary role in setting research agendas, that indigenous and Western perspectives should reconcile, and that research results need to be presented in formats and contexts appropriate to both native and academic communities. This is a difficult goal for ethnographic filmmakers to achieve because these two communities may have different expectations of the final product. Native communities are often interested in documenting cultural practices and contemporary problems for educational purposes, to provide role models to young Native Americans, and to present their self-image to non-Indian viewers. However, the academic community is more interested in a product that provides information about the theories and methods employed by the researcher for her/his anthropological interpretation. The anthropological attempt to come to terms with its construction of the 'other' and with its construction of the 'self', leads to the 'other' being silenced once again. Thus the ethnographic filmmaker's product does not represent "the native's point of view". Currently, ethnographic filmmakers make visual records for outsiders. However, native communities may not want the final product to leave their community and therefore avoid Western viewers' control over the interpretation of these representations.

How then, can the needs of academic and native communities be combined? The native community should initiate the project, set the research agenda, and keep editorial control as well as maintain control of the footage and the copyright. Ethnographic filmmakers must negotiate their research position by focusing on why and how the tribe wants the visual document to be constructed in a certain way, or by focusing on the process of filmmaking and the different expectations concerning the final product. Visual anthropologists may be helpful in advising communities about reception studies of visual products that the community intends to use in representing itself to outsiders. While Ginsburg sees indigenous media as a positive step towards self-determination, Faris, Hughes-Freeland, and Martínez warn that indigenous films can not provide a solution to existing power relations between the West and indigenous groups because indigenous groups are already situated by the West. Also, because the (mainly Western) viewer constructs meaning, documentaries only perpetuate already existing stereotypes.

5 Conclusion

Clifford notes that anthropologists have a negative public image that is "... sometimes hardened into caricature." This image exists partly because few anthropologists engage in public discussion about the somewhat confusing products attributed to them. Since advocacy organizations, spokespersons, governments, and the media have appropriated anthropological interpretations - sometimes with disastrous effects for indigenous groups - anthropologists must deal with the real-life implications of their work. Anthropologists cannot speak for, about, or alongside, but only in collaboration with the subjects they represent. They have to give up authority and leave the decision of representation to the groups themselves.