Southwest Airlines, “New Mexico One,” Albany International Airport, August 2017. Photograph by Michael F. Brown
A couple of interesting things are happening on the cultural appropriate front. The Indian Pueblo Cultural Center in Albuquerque has just opened an exhibition on the appropriation of the Zia sun symbol by New Mexico state government and eventually by scores of businesses, tatoo artists, etc. The symbol is of considerable religious significance to the people of Zia and probably other Pueblo peoples as well. The Santa Fe New Mexican story on the exhibition provides additional information. (BTW, as I explain in Who Owns Native Culture, p. 91, the use of the Zia sun symbol by Southwest Airlines was approved and supported by Zia Pueblo.)
On a completely different front, it’s worthy of note that the Supreme Court has accepted for review a new case focused on whether the U.S. Patent and Trademark Office may refuse trademark protection for brands whose language is lewd or vulgar. The case concerns the USPTO’s decision to deny trademark protection to a line of clothing called FUCT. The case is interesting because it potentially revisits, at least by implication, a 2017 Supreme Court decision overturning a longstanding prohibition on trademarks that are “disparaging.” This category includes the marks of organizations such as Washington DC’s football team.
I expressed my dismay at the 2017 decision here. The court allowed disparaging marks primarily on free-speech grounds even though patents and trademarks are government licenses whose function is primarily commercial rather than political. Admittedly, I’m not a legal scholar or a constitutional expert, but common sense suggests that the government should not be in the business of endorsing and protecting obviously offensive brands that insult minorities, women, etc. Companies remain free to embrace hurtful images and slogans as much as they like; the issue is whether the commercial value (if indeed there is any) of these brands is eligible for protection by the federal government.
I’m grateful to Abou Farman (New School University) for sending me information on a recent tragedy in Amazonian Peru that took place not far from the major city of Pucallpa. On April 19, 2018, a Canadian tourist murdered a prominent Shipibo elder and healer, Olivia Arévalo Lomas, by shooting her in cold blood in her village. Individuals soon captured the perpetrator, Sebastian Woodroffe, 41, executed him, and buried his body in the forest. The story made its way into the international press, although many aspects of the murder, including the killers’ motive, remain unclear. Peruvian authorities subsequently arrested two men said to be primarily responsible for Woodroffe’s execution.
World interest in the killings has waned as these events recede into the distance, but Shipibo and Conibo people themselves continue to express concern about what some are calling “spiritual extractivism” associated with ayahuasca tourism. A document issued by the Shipibo Conibo Center of New York puts the situation this way:
People come to the Amazon to heal themselves of the culturally specific ailments of industrialized, individualistic societies – from addiction to depression to sexual, military and other forms of trauma to eating disorders and diseases and illnesses that have found no real cure in the halls of Western medicine. Then they get to leave but they leave behind traces of their ailments, trails of inequality, frustration, violence, and sometimes legal cases.
In August, a hundred Shipibo, Conibo, and Xetebo healers met to discuss these questions and organize a union of traditional healers along the lines of similar organizations in parts of Africa. They issued a declaration that, among other things, states their intention to “investigate the development of a mechanism by which foreigners taking advantage of indigenous medicine, healing and spiritual labour might be able to contribute to the cultural and political empowerment of Shipibo-Konibo-Xetebo Peoples and their path towards self-determination.” The complete declaration and related information can be accessed here.
These events are a sobering reminder that engagement of Indigenous peoples with external market forces—even those associated with the spiritual marketplace—can lead to unforeseen consequences, some positive, others negative. It is imperative that seekers from the Global North assess the impact of their spiritual quest and do what they can to mitigate its potentially damaging effects.
Nearly twenty years ago, when I first pitched a writing project focused on emerging disputes over the intellectual property (IP) of Indigenous peoples, my favorite editor’s reaction was that the topic was too specialized and, frankly, too boring to sustain a compelling book. Eventually I was able to convince her otherwise, and her editorial ministrations helped to shape a work whose longevity has surprised both of us. Not that it hasn’t evoked its share of criticism, but that is to be expected when dealing with a highly charged and complex topic.
A recent and entirely unexpected development that turns the Indigenous IP issue on its head is usually referred to as the “sovereign immunity” question. As the journalist Adam Davidson explains in a wonderfully succinct New Yorker piece published in 2017, a revision of patent law passed by the U.S. Congress in 2012 made it much easier for corporations to challenge patents held by others, potentially leading to an explosion of expensive litigation. Exempt from the law are sovereign entities—typically nation-states but also federally recognized Indian nations. A creative patent attorney in Texas came up with the idea of helping corporations transfer their patents to sovereign Indian tribes as a way to minimize patent scrutiny. The first transfer took place between the pharmaceutical company Allergan and the St. Regis Mohawks. In exchange for the transfer, the Mohawks agreed to lease rights to patents associated with the best-selling drug Restasis back to Allergan for $15 million a year.
Anyone as sympathetic to Native American causes as I am will be tempted to celebrate the Mohawks’ strategic use of their sovereign status to generate badly needed revenue for their community. And there is a delicious irony in Native Americans benefiting, perhaps for the first time, from an intellectual property regime that has long allowed the appropriation and exploitation of their traditional knowledge by powerful outsiders. Yet from a social justice standpoint this use of sovereignty is flawed at best, since its goal, at least from Allergan’s perspective, is to delay generic versions of Restasis from becoming available to patients, presumably at a lower cost.
Chief Justice Earl Warren once declared, “In civilized life, law floats in a sea of ethics.” In this case, the ethical sea is notably unsettled and murky.
I recently gave a talk on current thinking about cultural theft to an audience at Southwest Seminars, a Santa Fe-based organization that sponsors a public lecture nearly every week of the year as well as frequent field trips in the region. As one might expect in Santa Fe, a town long known for its artists (Indigenous and otherwise), after the lecture a number of people expressed concern about whether their own art works represented cultural appropriation. As one woman put it—and here I paraphrase—”My work is inspired both by the spectacular New Mexican landscape and the work of the Native Americans who portray it in their ancient artistic traditions. Is that wrong?”
I have no way of knowing whether her paintings represent a commercial activity or only a hobby. In the latter case, it’s hard to see how imitations of, say, Pueblo pottery designs harm anyone. Still, it reminded me of how complex and confusing the issue of cultural appropriation is for many people, especially at the non-commercial end of the arts spectrum. And then there’s the question of how, or even whether, Indigenous artistic productions can be protected when appropriators imitate the style of a given tradition rather than actual works.
Aspuac says that royalties received as a result of the patent would be divided among the community. The community will designate representatives to negotiate on their behalf with companies seeking to use their designs, and manage the distribution of funds back into the community. Aspuac and other leading members of the movement want to see the money invested in social projects like weaving schools and education for women and children.
The hope is that with the patenting of their textiles and designs, the Maya community would have more autonomy and control over their heritage and culture, thus alleviating two of the major hardships the community faces: cultural appropriation and dispossession. Royalties received from the patent would also give the communities the chance to end a long-standing cycle of poverty. [Source]
This sounds like a promising approach, and I hope it enjoys success. Nevertheless, it begs the question of whether such a law would effectively prevent the sale of “Maya-inspired” designs that don’t consist of exact copies of existing works. Where does Mayan creativity end and some other society’s creativity begin? How far into the past would such protection extend? And would it protect the work of Maya weavers experimenting with radically new artistic forms? The latter question might sound hypothetical, but after three years of hosting Native American artist fellows at SAR, I’ve come to appreciate how many of them are joyously breaking with tradition to pioneer powerful hybridized art. An example is found in the paintings of Ehren Kee Natay, as well as his work in other media. Ehren was SAR’s Rollin and Mary Ella King Native Artist Fellow in 2014. I expect that Indigenous Guatemalan artists aren’t far behind.
One possible solution for the Guatemalan case would be to complement conventional copyright protection of finished works with a licensing program that would allow manufacturers to certify their work as “Mayan” or “Maya-inspired” for a fee. The licensing fee would have to be modest enough to be absorbed as part of the cost of doing business. It would be similar to Fair Trade certification, which assures customers that they are doing the right thing by purchasing a certified product. This strikes me as administratively more plausible than trying to enforce a “cultural copyright” on Maya weaving in all its forms and variations.
On a related front, be sure to check out the website of the Creative Sensitivity Project, the goal of which is to “get as many creatives as possible to understand the effects and ramifications of cultural misappropriation to understand how their job as creative practitioners will effect marginalised groups in society.”
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.
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.
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.”
I confess that I’m a sucker for feisty, against-the-grain assessments of thoughtless pieties of this nature, largely because recognition of the real injustices of certain kinds of inter-cultural theft are undermined by indiscriminate accusations that one group is stealing cultural elements from another..
Living in the Southwest and regularly engaging with Native American nations has sensitized me to the harmful effects of thoughtless imitation, even when well intentioned—a prominent case in point being the history of the Smoki People, a group that imitated Hopi rituals and dress for decades. In short, cultural appropriation is a real problem worthy of informed criticism. But critical distinctions need to be made lest it be reduced to an empty slogan, which I take to be the point of deBoer’s post.
Today we hear less about biopiracy than we did a few years ago. As I’ve argued elsewhere, some cases of alleged biopiracy are more ambiguous than critics of cultural appropriation typically admit. But one case of flagrant biopiracy, that of sweeteners drived from the South American species Stevia rebaudiana, is finally starting to get the attention it deserves.
S. rebaudiana is an herbaceous plant native to eastern Paraguay that was long used by indigenous Guaraní peoples as a sweetener for teas and medicinal preparations. The sweetness of Stevia comes from several glycosides, including stevioside and rebaudioside, that produce a sensation of intense sweetness without increasing the blood glucose of those who consume it.
Use of Stevia as a sweetener was documented by Western science in the late nineteenth century, although its chemical constituents were not identified for another sixty years. As developed nations began to search for calorie-free sweeteners, the properties of Stevia became of considerable interest. Stevia seems to have been embraced as an alternative to sugar first by Japanese and Chinese corporations. In the U.S., use of Stevia initially stalled because of preliminary evidence that its chemical constituents might be carcinogenic, although effective lobbying by manufacturers of competing artificial sweeteners was also a factor. The carcinogenicity claim was eventually refuted, however, and Stevia‘s commercial value has grown substantially since the 1980s.
The Guaraní, one of South America’s poorest and most endangered indigenous populations, have received negligible benefits from the global market for this potentially billion-dollar product. Ironically, marketing campaigns for Stevia-based sweeteners often identify it as “traditional” or “indigenous.”
Smallholder farmers in Paraguay derive some income from cultivation of the plant for the market. But even this modest compensation is being undermined by commercial biosynthesis of Stevia‘s key compounds in the developed world. In other words, industrial producers no longer need the Stevia plant to manufacture the sweetener that has become a hot product in the competition for zero-calorie alternatives to cane sugar in parts of the world where obesity and diabetes are major public health problems. The scale of this obvious injustice is staggering.
For more information on this situation and efforts to address it, a good starting point is the publication The Bitter Sweet Taste of Stevia, a report published by a consortium of European and Paraguayan NGOs. A protest petition directed to Coca-Cola can be found here.
This site offers information about the book UPRIVER (Harvard UP, 2014), other books by Michael F. Brown, issues related to Amazonian peoples, events at the School for Advanced Research–Santa Fe, and occasional meditations on anthropology and human social life in general.