The vapid debate about cultural appropriation continues in social media, the latest reductio ad absurdum being the claim that hoop earrings belong to Latina culture and shouldn’t be worn by Anglo women.  The neocon press loves these stories because they illustrate the alleged excesses of identity politics in American colleges and universities.

Conservative interest in accusations of cultural appropriation may explain why I was called by Alice Lloyd, a reporter for The Weekly Standard, and invited to explain why appropriation has become such a pervasive meme.  To her credit, she was more interested in efforts to limit the appropriation of indigenous knowledge than in tempests-in-teapots like the hoop earrings issue.  Her curiosity appears to have been sparked by criticism of the glacially slow efforts of the World Intellectual Property Organization (WIPO) to develop protocols for the protection of traditional knowledge and indigenous genetic resources.

Although I admire the efforts of legal thinkers such as James Anaya to nudge WIPO to promulgate global policies that provide an umbrella of protection for indigenous peoples, I’m skeptical that protocols on that scale can effectively address the particularities of local situations and multiple conceptual domains (e.g., genetic resources, biological knowledge, expressive culture, sacred understandings, etc.)  One has only to read WIPO’s draft documents to wonder whether endless micro-editing of terminology can lead to successful solutions in our lifetime.

Any way one slices things, legal protocols must resolve knotty questions.  Who qualifies as indigenous?  Who legitimately speaks for communities given local disagreements about whether formally constituted Native governments (e.g., the tribal councils of federally recognized Indian nations in the United States) are qualified to represent the community in matters relating to religious knowledge?  Can one ever reconcile a global IP system predicated on time-limited monopolies—patents and copyrights— with what indigenous peoples typically see as the eternal status of their values and practices?  Should the cultural-protection rights of indigenous communities always trump the right of indigenous individuals to share life histories that may include religiously sensitive information?  Can WIPO’s necessary focus on nation-states ever be fully reconciled with the complex and often fraught status of indigenous communities within those nation-states? These and other tough questions have made the journey toward international protections a painfully slow one.

The article that emerged from the Weekly Standard interview is more thoughtful than most, and I’m flattered that Lloyd says nice things about a book I wrote years ago.  Still, I feel obliged to correct an error in the account.  For the record, the School for Advanced Research wasn’t founded by “frontier-minded and Bryn Mawr-educated heiresses with cash to burn.”  It emerged from the efforts of an early anthropologist, Alice Cunningham Fletcher, and the archaeologist Edgar Lee Hewett to establish a center for the study of American prehistory that would rival institutions that studied the archaeology of the classical world.  The Bryn Mawr graduates mentioned by Lloyd are presumably Martha Root White and Amelia Elizabeth White, who built a home in Santa Fe in the 1920s.  Amelia Elizabeth White bequeathed the estate to SAR in 1972, 65 years after SAR’s founding.  Details here.

It’s fair to say, as Lloyd does, that many members of Santa Fe’s Anglo elite had an appropriative attitude toward Native American culture.  Early in the twentieth century, Santa Fe and Taos served as meccas for educated Anglos searching for an America that owed little to European high culture.  They found this primal authenticity in the New Mexico landscape and its indigenous and Hispanic populations, especially the Pueblo peoples of the region.  Although Hewett, the White sisters, and others like them were deeply sympathetic to Native Americans and in some cases fought vigorously to defend indigenous land rights and religious freedoms, their attitudes were often condescending.  They presumed that they were more qualified to speak for Indians than Indian people themselves.  In this sense they were creatures of their time.

The SAR of today is a different place.  In particular, SAR’s Indian Arts Research Center is committed to doing what it can to facilitate the transfer of indigenous knowledge between generations and to work collaboratively with the communities in which the IARC’s collections originated. And the IARC is extremely careful about maintaining the confidentiality of sensitive religious knowledge, to the limited extent that it can be found in the IARC’s records. Perfection achieved?  Not by a long shot.  But we are making progress despite the current economic and political headwinds.

It remains to be seen whether public understanding can move beyond trivial arguments about hoop earrings, yoga, and Asian cuisine to acknowledge the real injustices suffered by indigenous peoples when their hard-won traditional knowledge is commercialized or otherwise misused by outsiders.

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On trademarks.  The recent Supreme Court decision in Matal v. Tam has defined trademarks as a form of speech, thus voiding restrictions on disparaging marks and opening the door to continued legal protection of the controversial name of Washington D.C.’s football team.  I’m no legal scholar, and I understand that complex issues of free speech are at stake, yet common sense (for what that’s worth these days) says (1) that commercial speech is different from political speech, and (2) that trademarks are not a fundamental constitutional right but a license granted by the government upon satisfaction of a set of stringent conditions. Commercial speech is held to standards of accuracy that prevent a company from making wildly inaccurate claims (“Our toothpaste cures five forms of cancer!”) that are protected in the context of political speech (as when Donald Trump claims that his election victory was the greatest in American history).

I thus fail to see why the government should be obliged to authorize trademarks that disparage and hurt specific communities, especially minority ones.  Granted, the use of disparaging trademarks doesn’t seem likely to become widespread; after all, it will drive away many customers, thus defeating a trademark’s commercial intent.  But in an era as polarized as ours, I can imagine some people being moved to register and use offensive trademarks . . . well, just because they can.  Even legal scholars who defend the decision accept that it may also  void restrictions on “scandalous” trademarks, meaning that we can look forward to more vulgarity in popular media and on the shelves of our local shops.  It is hard to celebrate this decision as a positive validation of American free-speech rights.

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Update on the STOP Act.  On a more encouraging note, Senator Martin Heinrich (D-NM) has just introduced to Congress a revised version of the STOP Act (Safeguard Tribal Objects of Patrimony).  The director of SAR’s Indian Arts Research Center, Brian Vallo (Acoma Pueblo) was involved in revisions to this bill and in promoting conversations between Native American leaders, attorneys, and dealers in Native art that have led to refinements in the proposed legislation.

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Update, 17 July 2017.  Don’t miss Arthur Krystal’s essay “Is Cultural Appropriation Ever Appropriate?” L.A. Review of Books, 17 July 2017.

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Update, 7 August 2017.  The Washington Post has just published a fascinating story about two men who have filed trademark applications for the Nazi swastika and a variation on the n-word in order to prevent hate groups from using them.  Their hope is that they can contaminate and degrade the power of the terms. “Maynard [one of the trademark applicants] . . . planned to co-opt the swastika by including it on baby products. Such ‘social satire,’ he said, could change its meaning and restrict its usage among hate groups. ‘One of the hopes is that people look at the swastika flag in 10 years and think: baby wipes,’ he said.”