Indigenous nations are often classed alongside African Americans, Asian Americans, and Hispanic Americans as among the more vulnerable racial and ethnic minorities in the United States. …Like the other groups mentioned, most tribal nations are severely disadvantaged economically and have astounding levels of unemployment and poverty. But although tribal nations share some socioeconomic characteristics with other minority groups, the differences distinguishing tribes from the other groups profoundly exceed any parallels that might be drawn.1
Welcome to the second part.
We started last time with a brief examination of Professor Weiss’s anti-NAGPRA polemic. Weiss argues that NAGPRA unconstitutionally imposes a kind of “Creationism.” More specifically, it imposes Creationism on the work of scientists and social scientists whose activities and self-understanding have historically claimed a kind of value neutrality, but which are in fact guided by certain fundamental presuppositions and commitments. These are diverse, but at a minimum they include the following beliefs:
a belief in the socially benevolent operation of an open, free and transparent “marketplace” (a concept shaped in part by classical political economy);
a belief in the minimum of constraints on the individual striving for free expression (a transposition of utilitarian philosophy and the work of J.S. Mill);
a belief in the power of markets to disclose truth, to discover “natural price” and so on (represented by Adam Smith, but also neoliberals like Israel Kirzner).
We could say a lot more about these three underlying commitments, but as my explanatory comments make clear, all three of them are coeval with the development of various laissez-faire, “free market” understandings of self-organizing, maximally efficient aggregations of self-interested human behavior. This is what leads me to contend that science is committed to a kind of modern, progressive, liberal understanding of the world. The so-called “scientific method,” to its evangelists, sheds light into dark corners, terrifies the powerful, and (most importantly) unleashes in a gentle way the powerless power of modern reason. This is in especially sharp contrast to the partial and even arbitrary force of states — the visible hand versus the invisible one — and political power more generally.
We don’t need to spend any more time analyzing Weiss’s conflation of Native/Indigenous science with what she calls “Creationism,” but at least now we can understand what she’s trying to do: Creationism represents an imperfectly partial perspective, a non-universalizing practice, one that foregrounds and centers beliefs that have in fact been falsified by the progress of science. Indigenous approaches share absolutely nothing with the Abrahamic faiths (!), but for Weiss they are similarly partial, particular and “partisan.” Science, in contrast, like markets, is “beyond borders.” Evangelists like Weiss understand themselves — if they are good-faith actors — as a kind of Platonic guardian class, working to promote access to truth (or maybe Truth) that will have universal benefits. The state and (in her words) “Indian communities” are in contrast selfish agents who wish to privatize knowledge that allegedly “belongs to everyone,” which is of course why human remains and artifacts need storage and preservation in museums. Such institutions are the protectors of transparent access, and preservation for “all humanity” rather than one group.
All of which is fine as far as it goes. The problem, however, is that Weiss’s polemic misses the point of NAGPRA, which doesn’t belong in the single epistemic “frame for debate” that she wants to construct. First, NAGPRA isn’t a law about religion at all. NAGPRA is instead a Repatriation Act. So what’s the difference? If we’re talking about various “communities” in a pluralistic framework — a congeries of different collectives with distinct identities and interests, pursuing discrete agendas that often conflict and need to be sorted-out by sovereign power, ideally without conflict — well, then sadly there is no difference. If this were the case, NAGPRA would be one more example of the state engaging in preferential treatment, choosing one interest group over another, elevating one identity in the “marketplace” of formally equal positions and engaging in a zero-sum redistribution of goods. In this view, it’s anthropologists versus “Indian communities.” This the way Weiss understands the “debate,” and no doubt as well it’s the way her defenders (some in good faith, but many more with more problematic motivations) understand it.
The problem with this understanding, however, is that the framing is wrong. We don’t have actors in a single epistemic frame engaging in a debate over Truth and Progress, as various “free speech absolutists” would like. The communities in question are not actors in a pluralistic framework. Native tribes are not an interest group. They are not “Indian communities” but sovereign nations. Why is this distinction important? Let’s begin with a quote from legal scholar David Wilkins. It is long, but vitally important:
This tribal sovereign status was not delegated to the tribes by the courts, the federal government, or the states. It is original and inherent, though it has been directly impacted by various federal and state laws, policies and regulations. Tribal sovereignty has been recognized by several European nations; the federal government through hundreds of treaties, nearly 400 of which were ratified by the Senate and proclaimed by the President; and by the states, who were forced to concede that as a result of the Commerce Clause of the Constitution they lacked authority to deal with tribal nations. Thus, fundamentally, the tribal relationship to the United States is a political one, although it is a relationship affected by tribal culture.2
In the last sentence, Wilkins says “the tribal relationship to the United States is a political one.” What does he mean, and why does it matter?
Modern sovereignty begins by separating political from religious power. As a way of obviating the disruption and bloodshed of various Wars of Religion, the Peace of Westphalia (1648) allowed church leaders to retain control over the conscientious lives of believers, but carved-out a secular space for the political power of the Prince. Within that space, the Prince’s rule would be absolute. Part of the exercise of this worldly power would in turn be the capacity to draw the distinction between the state’s friends and enemies, and as a result, to declare war on other sovereigns. As Carl Schmitt has correctly observed, this is what “the political” means in the modern frame: politics properly understood does not play by the rules established by actors in free markets, individuals seeking the truth through debate societies, or scientists guided by curiosity to examine the natural world. Political rules (or more awkwardly, “the rules of the political”) are of a different order, and that order structures what happens within a specific territory, to a specific population.
Any discussion of repatriation implies a certain respect for sovereignty. Probably its oldest origin is in the experience of war; as such, it establishes rules for the return of soldiers’ bodies between powers, even above and beyond the existential determination of friend and enemy. To be sure, yes of course the government of the United States has engaged in various projects of deconstruction, attacking and undermining Native sovereignty. And yet in legislation like NAGPRA we can witness a certain inner logic that implies at least a form of recognition that rises above mere “moral obligation,” or even “cultural preservation” (since that’s what museums and scholars claim to do so well).
Put differently, the issue isn’t primarily moral, and it isn’t about the pursuit of truth or Truth, which would put us back on the naïve ground of the debate that Weiss wants to have (Evolution versus Creationism and all of that). The fundamental issue is political. It involves the recognition of an obligation that one sovereign nation owes another sovereign nation. This is why it must be respected, and this is also why its discussion doesn’t belong in the imaginary debate societies envisioned by various “free speech absolutists.”
David Wilkins, American Indian Sovereignty and the U.S. Supreme Court (University of Texas Press, 1997), pg. 19.
Ibid., pg. 21, my emphasis.