Category Archives: cultural heritage

Cultural appropriation and its Mayan discontents

Huipíl detail
Huipíl detail, Jilotepeque, Guatemala. Source: Wikimedia commons, Textile Museum of Canada.

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.

Some of these issues are addressed, and others dodged, in a recent news story about efforts to protect the intellectual/cultural property of Maya weavers in Guatemala.  According to the story, the IP laws of Guatemala explicitly excludes Indigenous art from protection.  A group of weavers has filed a lawsuit seeking government protection for their work:

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.”

Beyond hoop earrings: The damaging impact of the cultural appropriation meme

The Moana-themed costume that Disney pulled out of stores after intense public criticism, Fall 2016

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 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.


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


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.”

More on cultural appropriation

williams_elle

Hats off to a friend for directing me to a recent blog post by Fredrik deBoer questioning the widespread abuse of the idea of cultural appropriation.  His views complement and move beyond my own discussion of degrees of cultural appropriation posted early in 2016. [July 2017: It looks like the post has been taken down from deBoer’s site.]

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.

A useful place to start a more informed discussion is an online publication by the IPinCH project in Canada: “Think Before You Appropriate.

Challenging the Fiesta de Santa Fe

entrada_2016

The Fiesta de Santa Fe is a fascinating example of an invented and evolving tradition.  Its historic roots date to 1712, when the Hispanic residents of Santa Fe came together to celebrate the Reconquest of Santa Fe in 1692 by don Diego de Vargas.  A general uprising of Pueblo communities in 1680, famously led by an Indian named Popé, resulted in numerous Spanish deaths and the evacuation of most of New Mexico by Spanish colonists.  De Vargas returned with a military force in 1692.  The first phase of the Reconquest was fairly peaceful, but by 1693 conflicts between Spaniards and Pueblo people had erupted and continued for years.  The Reconquest, in other words, was not nearly as peaceful as advocates of today’s Fiesta assert.  (Details of the Reconquest are available in a summary provided by the Office of the New Mexico State Historian.)

The Fiesta was primarily a religious event through much of its early history, although it went through various changes as control of New Mexico shifted from Spain to Mexico and then to the United States in 1846.

At the dawn of the twentieth century, Fiesta had fallen onto hard times and was apparently abandoned in 1912.  In 1919 a revival was spearheaded by SAR’s president, Edgar Lee Hewett.  Hewett’s goals were multi-faceted.  He and other members of the Anglo elite wanted to celebrate all of the region’s cultures while promoting Santa Fe’s commercial aspirations.  Hewett’s efforts to control the increasingly elaborate event generated resistance by Santa Fe’s artist community, who organized counter-events that parodied the seriousness of Hewett’s version of the Fiesta.

In subsequent years Fiesta seemed to have returned to its original roots primarily as a celebration of Santa Fe’s Hispanic heritage.  As Native American militancy intensified, however, local Pueblo leaders began to protest the whitewashed portrayal of the Reconquest.  There protests are voiced in a powerful documentary, Gathering Up Again: The Fiesta in Santa Fe (dir. Jeanette DeBouzek and Diane Reyna, 1992).

The 2015 Fiesta, especially the so-called Entrada or arrival of a mounted dignitary representing de Vargas as he enters the plaza to retake Santa Fe, generated fierce criticism from Native American quarters.  These became much more marked in 2016, when raucous protests forced the horsemen representing de Vargas and his assistants to dismount.

Dignitaries dressed as Spanish conquistadores attempt to ride through a crowd of protesters during the 2016 Entrada in front of the Palace of the Governors.
Dignitaries dressed as Spanish conquistadores attempt to ride through a crowd of protesters during the 2016 Entrada in front of the Palace of the Governors.
Police observers in military camo keep an eye on the Entrada protest.
Police observers in military camo keep an eye on the Entrada protest.

On September 17, an editorial in the Santa Fe New Mexican made a case for conversations between Hispanos and Indians that could change the event in ways that would bring the community closer to together.  It remains to be seen whether this will happen.

This year’s protests put a sympathetic outsider in an awkward position.  Fiesta is an occasion when Santa Fe’s Hispanos can express pride in their cultural heritage, which in the case of New Mexico has produced one of the most distinctive and in many ways admirable regional cultures in the U.S.  At the same time, Native Americans can legitimately protest a public ritual that misrepresents the brutality and imperialism of the Reconquest.   The conflict is further complicated by the many threads of history, family, and religion that unite the two communities.  Still, Fiesta has adapted to new realities over its long history, and there’s reason to be optimistic that it can change yet again in response to the vitality of Santa Fe’s multicultural civic life.


Sources on la Fiesta de Santa Fe:

–A short article in New Mexico Magazine.

–Don’t miss a charming and informative El Palacio article by Carmella Padilla that describes a painting by the artist Gustave Baumann that playfully documents the Fiesta parade as performed on the Santa Fe plaza in 1926.

–For details of SAR’s pivotal role in the revitalization of Fiesta in the 1920s, a good source is Nancy Owen Lewis and Kay Leigh Hagan, A Peculiar Alchemy: A Centennial History of SAR, 2007.

–Ronald L. Grimes, Symbol and Conquest: Public Ritual and Drama in Santa Fe, New Mexico, 2nd ed., 2013. Grimes has produced an album of seven videos about the fiesta. In addition, two chapters of his recent book, The Craft of Ritual Studies. are about the fiesta. The book discusses Sarah Horton’s The Santa Fe Fiesta, Reinvented, as well as Jenny Debouzek’s 1992 documentary, Gathering up Again: Fiesta in Santa Fe.

–Sarah Bronwen Horton, The Santa Fe Fiesta, Reinvented, 2010.


Update, September 22, 2016:  Distinguished SAR alumnus Estevan Rael-Gálvez published an excellent comment on the Fiesta situation in the Santa Fe New Mexican on 9/17.