Property in all the wrong places?

• Author: Rose, Carol M.

Who Owns Native Culture? By Michael F. Brown. * Cambridge: Harvard University Press, 2003. Pp. 315. $29.95.

Public Lands and Political Meaning: Ranchers, the Government, and the Property Between Them. By Karen R. Merrill. ** Berkeley: University of California Press, 2002. Pp. 274. $50.00.

INTRODUCTION I. INDIGENOUS HERITAGE: THE SHORTCOMINGS OF BELONGINGS II. WHOSE HOME ON THE RANGE? INTRODUCTION

"'Good fences make good neighbors,'" New England's poet laureate Robert Frost famously observed. (1) But something must be going on in Williamstown, Massachusetts to make some New Englanders think differently. The two Williams College academics who wrote these fascinating recent books are clearly skeptical of Frost's nostrum, at least insofar as he implied that clearly defined property rights might help to keep the peace among the quite different players in the two studies. Michael Brown is an anthropologist at Williams, and in his book Who Owns Native Culture? he is so skeptical of property rights that he appears to reject his own title, asserting that the central issue about indigenous cultural productions is not ownership but rather dignity. (2) More on that subject shortly. Meanwhile, over in the history department, Karen Merrill has written Public Lands and Political Meaning, in which she similarly decries what she sees as a baleful but growing tumor of property talk, which has spread its tentacles into the century-and-a-half-long relationship between ranchers and public land officials in the Western United States. Both authors seem to wonder, Why can't everyone just talk it over, without all this posturing about who owns what? Wouldn't that be better for people who at the end of the day have to find some way to live with one another?

For one like myself, who has spent a great deal of time tinkering with property concepts and more than occasionally pointing out their subtle and misunderstood virtues, these lugubrious views of ownership are a bit distressing, especially coming as they do in such exceptionally interesting and informative books. I console myself that at least the authors are talking about property, which I expect would not have happened in the social sciences and humanities a decade or two ago. Fortunately, by now at least the anthropologists have gotten interested in my favorite subject, even if, like these authors, they don't like it very much, (3) and it appears that the historians may be joining them.

In this Review I will differ somewhat with both authors on the (to me) endlessly engaging subject of property. This is not to say that these books don't have a point, or rather, quite a lot of points. Both deal with areas in which, as any sensible person would notice, there are huge difficulties for what we think of as conventional conceptions of property--that is to say, "conventional" in a modern commercial society. In raising these challenges, both authors illustrate some of the cultural limits on our everyday conceptions of ownership. But in my opinion, neither author sufficiently credits the possibility that property might do more for them than they think--or might already be doing more. I think the reason for their disaffection is this: Each author encounters some persons or groups who claim property in something they can't or shouldn't have, or shouldn't have exclusively, and then concludes that all this talk about property is a bad idea altogether. This seems to me to be throwing the baby out with the bathwater. It is true, as both authors point out, that currently conventional categories of property do not match well with the needs of the people they are describing. That problem in itself can give rise to overreaching. But there is no reason to think that we are stuck with today's conventions. Property is a highly malleable institution, and people have adjusted its institutional contours many times in the past. Despite the many wonderful insights of these books, the authors do not seem to notice that these mutations are already underway, right in front of our noses. More important, newly evolving property rights may well take us closer to the mutual respect and genuinely negotiated outcomes these authors want to see. Even "property talk," maligned though it may be in these books, has its uses: Property talk and rights talk can open up our imaginations to matters as subtle and as poetic as the relationships between good neighbors.

1. INDIGENOUS HERITAGE: THE SHORTCOMINGS OF BELONGINGS

   Brown's book might better have been called "Globalization Meets Native Culture." He takes the reader on an anthropological tour of the strains that modern commerce places on indigenous peoples' relationships to what might be called, for lack of a better phrase, cultural productions. Thus we meet the Hopi in the Southwest, distressed that the missionaries and anthropologists of a century ago took photos of their sacred dances and recorded their music; (4) photos and music like these now are available worldwide on the Internet. (5) We meet as well a group of Australian Aborigines who claim that the now-quite-successful artworks produced by one of their own members also belong to the community as a whole. (6) Then there are the members of the Zia Pueblo, who feel strongly that the State of New Mexico has ripped off one of their symbols for its state flag, (7) and the descendants of Crazy Horse, who seethe at the use of their ancestor's name to advertise an alcoholic beverage. (8) Mexican Indian communities claim that pharmaceutical companies must ask their permission before using local native plants; Native American groups in the West and the Great Plains want to get rid of the rock climbers who clamber up sacred cliffs, and, while they are at it, they would be pleased to oust as well the New Age cultists who poke around in sacred sites and copy native medicine wheels. (9) And for each of these examples, there are many more indigenous peoples with kindred grievances.

   Brown is sympathetic to many of these claims, and he applauds a number of the legal developments that have given them more weight in official channels. But he thinks property is generally a rather problematic route, for two different kinds of reasons. The first reason is the more expansive, the Big Reason: Property claims are a form of rights talk, and rights talk is (supposedly) poisonous to good relationships and to the kind of fluidity and flexibility that people need in their mutual interactions. This Big Reason overlaps with Merrill's views about the relationships of ranchers and public lands officials, so I will take it up later with respect to both authors. Meanwhile, Brown also has a more limited Little Reason why property claims do not work well for indigenous groups: Modern commercial conceptions of property simply do not map well onto the kinds of things indigenous groups want to do.

   In their most general form, property rights identify which persons' claims count against which resources, but in commercial societies, commentators often cite the right to exclude as property's defining characteristic. (10) Exclusivity can be exaggerated, because even the seemingly most exclusive property claims generally have some porosity. But as a kind of trope, exclusive rights yield some theoretical leverage. (11) According to standard utilitarian rationales, exclusive property rights advance investment and trade, and, by advancing those interests, property also enhances social wealth. These arguments are simple, and, as Richard Posner points out in his Economic Analysis of Law (citing Blackstone's eighteenth-century treatise), they have been known "for hundreds of years." (12) The fundamental idea is that secure ownership encourages appropriate investment, because the owner takes the benefit of good decisions and also bears the burden of poor decisions about the owned thing. This concentrated pattern of rewards and punishments makes the owner attend carefully to the things she owns. Besides, when ownership is clear, people in general are less likely to try to grab things and get into fights over them. Instead, people are more likely to cut deals and trade, because clear property rights lower the cost of bargaining as they reduce the costs of identifying owners. Trade itself expands an owner's thinking about the best ways to invest in and deploy her property, because she now can take into account not just her own personal use but that of all the potential buyers in the trading community.

   So go the conventional arguments for "standard" property in a commercial world: While certainly acknowledging that property is available for personal use and enjoyment, much of the thinking about property looks outward, to a wider world of investment, trade, and commerce. This is true not only for tangible property but also for intellectual property (IP)--a subject, by the way, to which Brown's book gives the general reader an excellent introduction. Particularly in the United States, IP is justified by the incentives that it gives for investment and trade, in the expectation that the resulting commerce will ultimately enhance the general production and dissemination of ideas.

   But what do the Hopi care about all this investment and trade when they face losing control over the images of sacred rituals? As Brown points out, what the Hopi want is confidentiality and even secrecy, not dissemination; that is why the standard categories of IP are so out of sync with their wishes. Their major concern is not money or fame. They simply don't want other people to rummage promiscuously through the imagery that matters so deeply to them. Interestingly enough, one of their preoccupations is with maintaining the balance among the various subgroups that make up the clan itself. As Brown describes the situation, the Hopi are made up of a number of subgroups added over time, and it enhances the tribe's sense of oneness that each subgroup has a special role to play in the...