Category Archives: heritage protection

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.

Protecting Cultural Patrimony: The Debates Continue

Sen. Martin Heinrich (D-NM) and NM tribal leaders at a July 2016 press conference held to publicize the Safeguard Tribal Objects of Patrimony (STOP) Act, which has been submitted to the US Congress. Source: http://www.heinrich.senate.gov.
Sen. Martin Heinrich (D-NM) and NM tribal leaders at a July 2016 press conference held to publicize the Safeguard Tribal Objects of Patrimony (STOP) Act, which has been submitted to the US Congress. Source: http://www.heinrich.senate.gov.

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.