Culture, Cultural Rights, and the Right to Assemble

Brian I. Daniels

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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 mech-
anisms that may encourage cultural preservation. Drawing upon the exam-
ple of an indigenous tribal constitution, I look to the voluntary association
of interest groups as an alternative legal means for sustaining specific cul-
tural practices and conclude with a discussion of their prospects and limi-
tations. [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.

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Culture, Cultural Rights, and the Right to Assemble

I 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 unal-
loyed good. Culture, under which we might include material arts and crafts,
religious beliefs, ritual performances, dances, songs, language, socially con-
structed meaning, and human memory, provides the content for construct-
ing personal and community identities (Silverman and Ruggles 2007). We
presume that identity is a paramount virtue because of the pride it gener-
ates 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 discours-
es, 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 person-
ality.” 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

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 BRIAN I. DANIELS

(UNESCO 1970) created a state-based framework governing the disposition of

stolen artwork, antiquities, and other objects of archaeological, ethnologi-
cal, and historical interest; and the Convention Concerning the Protection of
the World Cultural and Natural Heritage (UNESCO 1972) provided a mecha-
nism for acknowledging the cultural and natural sites deemed to be espe-
cially 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 revi-
talize “cultural traditions and customs,” and a right to control “cultural her-
itage, 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 cul-
ture. 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 skep-
ticism, 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, lan-
guage, and religious beliefs and practices, and pass them on to [their] chil-
dren, [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 eco-
nomic 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 lan-

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Culture, Cultural Rights, and the Right to Assemble

guage revitalization program with the aim of resurrecting a moribund lan-

guage with fewer than two-dozen fluent speakers. It has aggressively pur-
sued the repatriation of traditional cultural objects from museum collec-
tions 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 perform-
ance different from the everyday experience of Yuroks.
Focusing upon language, songs, dances, and the material arts as “cul-
ture” 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 appli-
ances, and especially sanitation and indoor plumbing offer a compelling
case for cultural change to those who remember growing up with out-
houses 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 over-
shadowed 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 mass-
produced toys, media, and goods for personal consumption. So far as I am
aware, there is no outcry to protect these newfound practices as funda-
mental 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 mat-
ter, 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 rethink-

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ing the issue of cultural rights more broadly. Again, the Yurok Tribe’s con-
stitution proves to be an instructive starting point.
The Yurok Tribe is a formally chartered association of indigenous peo-
ple, 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 preserva-
tion (see Hodder, this volume). At a minimum, any system of rights
requires a corresponding entity that will identify and provide for the ben-
eficiaries 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 col-
leagues and business relationships might connect the job-seeker to gain-
ful employment. The welfare state also intervenes by offering unemploy-
ment 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 impov-
erished 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

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right has already been negotiated and determined (if it has been acknowl-
edged 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, cul-
ture requires social actors who have the obligation of preservation. As we
have already seen, the Yurok Tribe is a sovereign indigenous nation, a spe-
cial kind of association, which claims such a duty. In liberal democracies,
the state may adopt some duties in this regard by promoting cultural fes-
tivals, sponsoring public commemorations and memorials, funding muse-
ums, 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 gov-
ernments are unreliable precisely because of their democratic underpin-
nings. Competing interests can, and frequently do, intervene to sway the
state. Developers often express hostility to historic or cultural preserva-
tion, 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 cultur-
al preservation should remind us of the power of politics grounded in
common interest. Associations formed with the specific purpose of pro-
tecting 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 use-
ful for understanding the vital role of non-state social actors. It describes
the political sphere between government and the market, where individ-
uals 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 insti-
tutions 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

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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 sup-
porting 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 con-
clude 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 com-
mon 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 commit-
ments (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 particu-
lar 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

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the right to create new social institutions. Some of these organizations

might not be entirely altruistic, and instead look for ways to translate cul-
ture 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 ethnogene-
sis and enterprise, allowing culture to become the entitlement that per-
mits an identity group’s enrichment. In effect, identity can act as mar-
ketable 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 prom-
ises of equality and recompense, and global flows of capital. But the incor-
poration of identity also threatens a violence of its own making. By pro-
ducing 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 pro-
tect 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 priv-
ileges, immunities, and limitations that come with the organization of iden-
tity 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 difficul-
ty 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 multicul-
tural democracies in potentially unequal ways (Hale 2005, Povinelli 2002).
One solution is to deny associational rights to any group that promotes a cul-
ture 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

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 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 cos-
mopolitan imaginaries, and to local sensibilities—that come with the asso-
ciations 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 secu-
rity 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 associ-
ational rights often means engaging with the neoliberal structures that sus-
tain 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 incor-
poration. In a structural sense, they are similar to other organized identi-
ty groups, like the Yurok Tribe, which adopt a duty to promote culture.

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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 anthropolog-
ical 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 simi-
lar claims. Archaeological research “requires an acknowledgment of pub-
lic 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 archaeolo-
gists, then, share a duty to recognize culture as a part of their profession-
al 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 cen-
tral 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 collabora-
tion 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.

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 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 feed-
back 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 fund-
ed 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).

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