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.
Laws, policies, and attitudes about cultural heritage–especially the heritage of indigenous peoples–continue to evolve, largely in the direction of acknowledging past injuries and formulating protection strategies for the present and future.
It’s fair to say that relevant policies are somewhat easier to develop when dealing with material goods such as human remains and objects of religious significance. These can only exist in one place at a time (unless they’ve been replicated digitally), which means that in principle they can be returned to the control of the communities that created them. This process is made more complicated by global trade, a problem that has come to public attention as a result of recent attempts to auction Native American religious items in Paris. These auctions sparked a public outcry in the United States, but thus far efforts to stop such sales have had only partial success. This unfortunate situation has prompted US lawmakers, with the full support of Native American leaders, to draft S. 3127: Safeguard Tribal Objects of Patrimony (STOP) Act of 2016, currently under review by the relevant congressional committees. If passed, this law would would increase penalties for the exportation of items of Native American cultural patrimony obtained illegally. Whether this bill will gain traction in a deadlocked Congress remains to be seen.
A couple of recent publications that frame the broader problem of cultural theft and appropriation are worthy of mention. One is the Texas Law Review essay, “Owning Red: A Theory of Indian (Cultural) Appropriation” (2016) by prominent Native American legal scholars Angela R. Riley and Kristen A. Carpenter, which is downloadable here. Riley and Carpenter attempt to formulate a unitary approach to understanding and dealing with cultural appropriation. They recognize that this isn’t easy because claims to intangible property are, in their words “particularly fraught.” Native Americans, they observe, tend to see intangible heritage as indistinguishable from material heritage even though Anglo-American law treats intellectual property differently from real and personal property.
Riley and Carpenter frame their analysis within the long history of appropriation of Indian resources by the United States. They explore a number of familiar cases, including the ongoing legal tussle over the name of the Washington, DC, football team. (Although they see the latter as part of a long history of appropriation, it seems to me more persuasively treated as a case of defamation.) In the end–and perhaps surprisingly for legal scholars–they don’t see law as the solution to some forms of appropriation. Native people, they insist, are mostly calling “not for laws, but for understanding and education,” including respect from the dominant society.
A shorter op-ed piece, “The Problem with Heritage,” has just been published in the anthropology website Sapiens by Joe Watkins. Watkins is a Native American anthropologist with vast experience in the legal and cultural complexities of repatriation, but his approach in this essay is more global, touching upon cases such as the intentional destruction of historic sites in Mali by Islamic extremists. “So when does heritage become a matter of grave concern? When one group uses it as a weapon against another, or possesses it when it’s important to another, or destroys it for political purposes.” (In March 2016 Joe Watkins participated in a panel discussion about repatriation sponsored by SAR’s Indian Arts Research Center.)
Watkins bluntly states, “Heritage is a property—something that is passed down from previous generations.” This is a defensible claim in the context of his essay. But exactly what kind of property is it? Most property is reasonably stable, with well defined limits. Some elements of heritage may enjoy such stability; others may not. And what are its boundaries? Apparently they are whatever the community of origin says they are at any given moment. To what extent, if any, is heritage “non-rivalrous” in the sense that one group’s identification of an element of heritage doesn’t preclude other groups from embracing it as well? Which members of a given community are qualified to anoint elements of heritage as cultural patrimony?
Another perennial problem in heritage debates is presentism, the judgment of past actions by the moral standards of a later time. Looking forward, it’s not unlikely that an object or cultural production considered an item of commerce today will, at some later point in a group’s history, be redefined as “cultural patrimony.” This is evident in the way that some European nations pass laws to prevent the export of great works of art that despite their commercial origin are now closely identified with British or French or Italian heritage. Closer to home, developers in New Mexico sometimes find themselves pitted against local preservationists committed to protecting the remnants of Route 66, which to them represents a form of shared American heritage.
I’ve heard art dealers complain that the proposed STOP legislation doesn’t protect them from the possibility that objects legally purchased or sold today will at some point in the future be redefined as the cultural patrimony of the Indian nation that produced them, thus compromising the objects’ market value. In my view this isn’t a powerful enough argument to warrant opposing the legislation. That said, it’s not an entirely meritless concern.
The fast-growing field of Heritage Studies needs deep thinking about the essential qualities and limits of cultural patrimony. The unanswered questions about patrimony shouldn’t stand in the way of progressive policies and legislation designed to prevent further injustice. Nevertheless, until the field produces a comprehensive theory of cultural patrimony, cultural protection laws will be built on an inherently unstable foundation.
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.