February 11, 2008

It's three days to Valentine's Day, and Dianna is drawing hearts that say....


Seriously. It's my number one Native American cultural materials repatriation legislation crush. I'm crazy about it but I don't think it knows I exist.

I am, actually, starting to lose sleep and skip meals and walk around in a daze because of it. I just last night submitted a proposal to my anthro professor for a research paper about repatriation legislation and forms of ownership. I had put off starting the paper proposal until the day it (the proposal, I mean, not the paper, are you kidding me?) was due, thinking, oh, I'll just write something about archaeology, I can knock out a proposal in no time. But panic started to set in about 2 pm yesterday and I parked myself in the library to, I thought, squeeze in some quick catalog-searching and source-gathering before grabbing lunch and heading home to do my Sunday errands.

I failed, I can't fathom why, to reckon with the magnitude of my geekery and obsession where archaeology is concerned. (Fun fact: Firefox's spell-checker thinks that "archaeology" contains only one A. Firefox's spell-checker is wrong.) Instead of doing some brief catalog searches and walking out with a couple of books and articles, I spent three and a half hours gathering ever-more-enormous armloads of books, flipping through them in a frenzy of unsystematic info-lust, and scribbling page after page of excited notes full of fascinating cases, unanswerable questions, and totally insoluble problems of culture and patrimony. I did, actually, not kidding, draw a heart in my notes and write NAGPRA in it, and all of this was before lunch (I think it was 5:30 before I noticed I hadn't put any tea or food in myself since 10, and 6:30 before I managed to stop pacing around lecturing invisible audiences about the fascinating things I had learned and actually eat what was at that point dinner). Then I dragged myself home under 30 pounds of books and put off starting my proposal itself, telling myself I had come so close to writing it in my notes in the library that all I'd really have to do was type it out and email it to the professor.

Silly archaeologist. I spent two and a half hours writing long, excited paragraphs outlining the problems encountered in good-faith attempts to determine appropriate repatriation schemes when the legislation providing terms for repatriation is shot through with assumptions about the nature of ownership that, well-intentioned as they may be, may still fall short of adequately addressing the vast variety of ways of owning in our vast variety of Native American societies. At one point I got kind of hot under the collar about the ownership of information and the need to balance fact-gathering to identify objects' rightful owners against forms of indigenous intellectual property management, as when, for instance, the knowledge of what a particular sacred object is sacred for is itself considered sacred and rightfully held only by the people invested with the authority to use the object, and if the object has made its way into the collection of the Podunk Puppybreath Museum of Anthropology and the PPMA demands to know why it's so important and how you know it belongs to your community before it will agree to give it back... how then are you going to get your object back without violating the set of principles to which it pertains by spilling the great mysteries to those schmucks at the PPMA who never had or earned the right to be in on the great mysteries anyway?

At 1:00 am I finally forbade myself to make my already ridiculously long and enthusiastic proposal any longer or more enthusiastic, and I emailed it off so that I couldn't change anything even if I wanted. I went to bed and couldn't fall asleep because I was still internally monologuing at a mile a minute about the things I hadn't been able to squeeze into my proposal. If I'd had a printer at home I'm pretty sure I would have printed out the text of Public Law 101-601 and stuck it under my pillow.

I don't believe in callings. I get annoyed when people take the glorious chaotic randomness of our universe and try to slap logic and intention all over it; it's ass-backward to my way of thinking. A thing that turns out elegant and workable among all the unhelpful chance and arbitrariness of the universe is far more awesome than one that turns out elegant and workable because something decided to make it that way. So say I, anyway, and of course YMMV.

In any case: calling, hell. I refuse to give some ineffable demiurge the credit for setting me up with a field of study so overwhelmingly engrossing and rewarding. I play my own matchmaker and I insist on taking my proper credit. I say: damn, do I know how to pick 'em.

Posted by dianna at February 11, 2008 05:37 PM

Back in the Fall of 2006 I took a course in Anthropology and the Law with Larry Rosen, who has both a Ph.D. in Anthropology and a law degree. He's a MacArthur fellow and holds a professorship at Princeton, but visits Columbia to teach Anthropology and the Law and American Indian Law. During the course, he hinted several times at the gigantic mess that is Federal American Indian Law, but he didn't go into too much detail since that was the subject of his other course.

The one thing I can recall is that apparently the doctrine of unconscionability in contract law was kind-of, sort-of derived from a Native American tribe. Sadly, I can't recall which people it was ostensibly derived from. Nonetheless: the idea of unconscionability in American contract law is that some contracts are so overwhelming favorable to one party over the other, by dint of the disfavored party's inferior bargaining position, that the contract becomes unenforceable. It came into American contract law when a law professor wrote a massive treatise consolidating and explaining America's contract law. This professor was apparently an amateur anthropologist and heard that one Native American tribe (the Creek? The Iroquois? The Lakota Sioux?) had something like unconscionability in their customs. The law professor thought it was a pretty neat idea, so he wrote it into his treatise (in a form quite different than it had been when used by the tribe, naturally) and claimed that this had always been part of American contract law. That treatise became the definitive work on American contract law, and suddenly courts started citing it for the proposition that unconscionability was an ancient element of the English common law.

But I digress. If, in the course of your research, you think it might be helpful to talk to Larry Rosen, he and I are on pretty good terms and I could put you in contact with him. Also, if you need to do any legal research, I might have usernames and passwords for certain highly useful (but expensive!) legal research websites that I could lend to you.

Posted by: MoltenBoron at February 11, 2008 06:46 PM

I had to Google unconscionability to find out what the hell it actually is, but now that I have done so I would like to say: if it were actually a part of ancient English common law I would be awfully surprised. It has generally been my impression that those elements of our society derived from old European anything are more or less all about screwing people over as long as you've got the muscle to make it stick. So this is a neat and reasonable factoid.

I appreciate the offer of resources, but think I will decline since I am writing as an anthropology person rather than a law person. So a) the NAGPRA text itself is probably all the eye-glazing legalese I can handle and b) I want to talk more about its application and consequences than its, you know, lawy characteristics. Still: excellent sharing. Not, again, entirely in keeping with my impressions of our legal system and the behavior it tends to reward.

Posted by: Dianna at February 11, 2008 07:36 PM