Cultural sovereignty is vital to the survival and self-determination of indigenous peoples, allowing them to govern their cultural and intellectual expressions.

The conflict over cultural appropriation, like the conflict over the Black Hills, centers around Native peoples' sovereignty. But unlike land disputes, the conflict over cultural appropriation clearly emphasizes the nature of Native peoples' sovereignty as both political and cultural. 45 Many Native people today speak of the fact that cultural and intellectual sovereignty undergird their continuing efforts to maintain political sovereignty. Robert Allan Warrior argues, for example, that Indian people need to develop an "intellectual sovereignty" that allows them to work both within traditional systems and outside of them to evaluate the multiple experiences they have had as distinct nations and cultures within a colonial structure.46 Similarly, Elizabeth Cook-Lynn's argument for tribal "jurisdiction" over the "storytelling of Indian America" is premised upon the need for American Indian people to have an "intellectual voice with which to enter into America's important dialogues.,,47 Professor Cook-Lynn observes that "[m]uch as the title to Indian land is still held by the white American government, the major Indian story is held in non-Indian enclaves.48 As Cook-Lynn asserts, nobody really cares what Indians think about any particular current national or global issue.49 The "place" of Indians is in a mythical past, painted in cartoons like Pocahontas, John Wayne westerns, or the plethora of western and romance novels that capitalize on stereotypes about Indians as either "noble" or "bloodthirsty" savages.

In reality, however, "[t]he intersection of modern and historic identity is a critical issue for contemporary Native American people."so After a series of federal policies designed to dismantle tribal cultures and force the assimilation of Native people, there is a pervasive idea among Native people that cultural restoration is essential to the task of building strong Nations in the future.51 For example, in the context of repatriation, Native Hawaiian leader, Edward Halealoha Ayau remarks that "[r]estoring the ancestral foundation through repatriation ... will spiritually clear the path to restoration of Ka Lahui Hawai'i (the Hawaiian Nation).,,52 As Ayau asserts, for Native people, culture is an inseparable aspect of their daily existence, and the survival of Native nations depends upon cultural maintenance.

In comparison, many non-Indian people treat culture as an abstract concept, something that can be easily separated from everyday life. Not surprisingly, many non-Indians consider tribal sovereignty as yet another feature of America's "multicultural tradition." That is, they tolerate the distinctive status of Indian nations up to the point that this would appear to give them rights in excess of those enjoyed by other citizens. America's multicultural tradition emphasizes the need for the government to tolerate different cultural traditions, but essentially holds all citizens to the same set of constitutional freedoms and protections. Under such a scheme, it is difficult to argue for a special group right to control cultural expression. In a constitutional democracy that privileges the sanctity of free expression, how does one argue for cultural rights that suppress expression or access to information? After all, unlike land-a resource that necessarily must be within the control of one party or another-intellectual or cultural expression is considered to be simultaneously available to multiple parties. Many authors have told the story of Sacajawea or Chief Joseph, for example. The facts are available to everyone; the precise form of expression is uniquely the property of the author.

Consequently, liberals routinely fail to understand why control of Native culture should "belong" to Native people. The United States is the ultimate "cosmopolitan" nation, where citizens have the liberty to worship in any religious tradition and adopt any lifestyle they choose, so long as this is consistent with the fundamental rights of their fellow citizens. 53 (They cannot choose, for example, to practice a religion that demands sacrifice of human beings). The conflict over cultural appropriation directly engages these suppositions. Under the liberal tradition, if non-Indians want to "dress up" like Indians and imitate "Indian religion," then they should have the freedom to do so. Similarly, if a non-Indian filmmaker wants to tell a story about Indians or a non-Indian artist wants to paint Indians or create baskets or jewelry patterned after "Indian designs," that is within the freedom guaranteed to citizens. Jurisdiction over culture, it seems, is antithetical to the "American" tradition.

Many Native people argue, however, that they must control representations of their cultures as a means to ensure cultural survival. The failure to protect Native cultures, they argue, perpetuates significant harm to Native people as distinctive, living cultural groups. So, for example, Native people argue for the right to control who can practice their religions, and assert that it is harmful to them when non-Indians appropriate their religions. They assert a right to control who can tell their stories and who can use their designs and symbols. Their claims are often reduced to claims of "intellectual property." But, as the Black Hills case demonstrates, it is impossible to reduce a cultural claim to a "property" claim. The existing legal structure is not set up to account for the interests that Native people are expressing. As a result, the battle lines over cultural sovereignty seem ambiguous. Unlike the battles of the last century, which involved tangible lands and resources, the battle lines are now lost in a confusing haze of analytically distinct claims centering around a common nexus: cultural appropriation.