Property Rights, Property Wrongs
| January 16, 2004 | Books & the Culture
Property Rights, Property Wrongs
BY JULIE ARDERY
Who Owns Native Culture?
By Michael F. Brown
Harvard University Press
336 pages, $29.95
wo
years ago, SBC Holding corporation’s chairman John Stroh III traveled to
South Dakota bearing “32 blankets, 32 braids of sweetgrass, 32 twists of
tobacco, seven thoroughbred racehorses and an apology” to Seth Big Crow.
Stroh was calling an end to his company’s part in a lawsuit over a product
called “Crazy Horse Malt Liquor.”
Michael Brown’s ambitious book Who Owns Native Culture?
draws us beyond the shameless racism of this case, and dozens of others, to
consider the pragmatics of cultural ownership and reparation. We might agree
that selling alcohol with an Indian warrior’s name violates common standards
of decency, but when beer manufacturers breach those standards, what happens?
Brown reveals that even a conflict as bald as the Crazy Horse case raises complex
and often contradictory issues of free speech, the public domain, rights to
privacy, and judicial authority. It’s not so simple as it seems.
Must a drug company that turns folk remedies into patented
medicines pay indigenous healers? If so, which healers deserve compensation,
and for how much? Or should the whole tribe be paid? Do rock climbers and New
Age priests have the same rights to use Devils Tower monument as Kiowa and Cheyenne
Indians do? Taking most of his examples from Australia and the United States,
two “settler societies” where such problems are multiplying fastest,
Brown courses through a welter of disputes, none with an obvious solution.
A help to us non-lawyers, Brown discusses the rudiments
of intellectual property law—trademark, copyright, and patent—and
introduces sovereignty and privacy issues. He doesn’t offer any rigorous
assessment of these frameworks but notes here and there how they might apply.
He laments the erosion of the public domain (we learn that the smell of fresh-cut
grass and the sound of a ticking clock both are protected by private trademark
now). And throughout his study Brown stresses that new technologies make it
less and less possible, even for huge entertainment conglomerates, to exercise
control of cultural properties. Puffy Combs or Snuneymuxw petroglyph: It’s
all on the web or soon will be.
Citing
conflicts over pilgrimage trails, aboriginal paintings, and cures for diarrhea,
Brown keeps circling back to a problem that underlies them all: Because cultural
disputes are riddled with differences of custom and values, how can these cases
ever be fairly decided? Whose courtroom or fire circle is the appropriate venue?
Whose concept of justice prevails?
Here’s just one of his examples: Indian tribes pressing
for the right to practice their religions in privacy at Devils Tower in northeast
Wyoming posed arguments before the U.S. National Park Service, addressing subsections
of the National Historic Preservation Act. At last (but to no effect, of course),
one tribal spokesperson asked, “Why must the mountain be defined by your
rules?”
Problems of authority intensify in conflicts among
and even within tribes: Who’s qualified to negotiate for the group? Brown
spends considerable effort recounting one Australian case pitting Ngarrindjeri
Indians against developers who planned a bridge to Hindmarsh Island. A consulting
anthropologist argued that the bridge would disrupt longstanding and highly
secretive Ngarrindjeri women’s religious rites, traditions so private they
couldn’t be divulged in court. But then another group of respected women,
all elders of the same tribe, denounced the religious claim as “fabrication.”
The legal wrangling that ensued involved environmentalists, feminist organizations, and the Australian government. The bridge was eventually built, but the builder declared bankruptcy, suing the Ngarrindjeri and other bridge opponents. Most recently, another judge, ruling in the bankruptcy case, has reconsidered the secret religious practices and determined that they hadn’t been fabricated after all.
This ball of cultural barbed-wire rolls on....
An anthropologist himself, Brown is sensitive to the ironies
that cultural disputes inevitably raise. He points out that controversial photographs
that missionary H.R. Voth took of Hopi ceremonies around 1900, clearly trespassing
against the privacy tenets of Hopi religion, have since been used by tribal
elders to reconstruct the Hopi’s cultural past. He also observes that,
in the Zapatista uprising, “globalized media served as a counterweight
to economic globalization,” focusing intense international criticism on
a bioprospecting project in Chiapas (See “The Professor and the Plants,”
TO June 22, 2001). The contingencies and paradoxes pile halfway to Zuni heaven.
Cultural ownership—whether of Parthenon statues still
in the possession of the British Museum or the Zia sun symbol imprinted on New
Mexico’s flag—is a sprawling topic. Brown doesn’t spell out his
reasons for limiting this study to “native” groups (or say whether
such societies possess special claims to their heritage), but even with this
limitation, he’s wrestling with an octopus. The customs and mores of indigenous
groups vary enormously, and so do cultural elements themselves. Brown acknowledges
“what works for crop genetic resources is probably not the best approach
for protecting proprietary interests in indigenous music or ceramics.”
So what does work?
After 200 pages of examples and hints, Brown concludes that
law is too crude an instrument to apply to culture. Especially in cases like
the Devils Tower, where multiple ethnic, economic, governmental and hobby groups
collide, he finds, “the best one can hope for is an imperfect, negotiated
compromise based on common sense and some degree of mutual respect,” an
approach he elsewhere refers to as “imaginative realism.”
To anyone who has recently issued an invitation requesting
a simple “R.S.V.P.,” Brown’s confidence in “common sense”
and “mutual respect” will appear stunningly naïve. I believe
that he hits closer to the mark when he shows that utter dependence on good
public relations induces many corporations to back away from legal battles with
indigenous groups, who typically command far greater public sympathy. To save
face, some companies have brokered ingenious trades: Southwest Airlines, for
example, gained the Zia tribe’s consent to use the controversial sun symbol
on planes in its fleet and, Brown writes, “gave an undisclosed sum to the
tribe scholarship fund.”
Brown contends that such not-quite-binding “political”
settlements, tailored to the specifics of each circumstance, are better than
law at balancing the aims of economic justice and cultural integrity. In legal
terms, these two goals can be hard to reconcile. For example, by registering
an indigenous insignia as “equivalent to other government symbols”
with the U.S. Patent and Trademark Office, a tribe protects this element of
its cultural heritage, but it simultaneously loses the right to license the
insignia for commercial use. This dilemma may explain the Zia tribe’s reluctance
to escalate its formal demand of $26 million in reparations from the state of
New Mexico into an outright lawsuit over the sun symbol on the flag.
Brown and many others shudder at the prospect of shifting decisions over such
intimacies as faith and music into the impersonal, odorless context of a courtroom.
“Many—perhaps most—elements of culture do not answer to a logic
of possession and control,” he writes. And he’s right. But when conflicts
arise, culture—like human reproduction and other intimacies—confronts
questions of justice, and often a court of law is the best place those questions
can be fairly considered.
Brown expresses special chagrin in the case of a project
in Mexico that had been designed to benefit all participants: a pharmaceutical
company, ethnobotanical researchers, and the indigenous people whose native
plants and cures were under scrutiny. In Brown’s analysis, hard-liners
who would not concede anything to industry sundered a worthy collaboration,
one that had been undertaken in good faith and stood to help indigenous people
of the region.
Portraying this dispute and several others as cultural stalemates,
he adopts a form of resignation. “If the disinterested quality of science
is a charade, as critics contend,” he writes, “scientists may as well
find industrial partners, especially if those partners agree to meet higher
ethical standards.”
But it’s not up to anthropology professors to police
corporate industry. Distasteful as this bit of realism may be, that job belongs
to the state. And the state, at least for the present, operates according to
law.
Who Owns Native Culture? is strangely deaf to history.
Women and African Americans didn’t gain rights to vote by “imperfect
negotiated compromise” on a case-by-case basis but by establishing laws.
“Culture is simply too performative, too elusive and at the same time easily
replicated, to lend itself to systematic regulation,” Brown writes. But
isn’t “systematic regulation” just what we want firmly in place
on such “cultural” matters as abortion and discrimination?
As I read it, Brown’s book makes a case for rather
than against turning to law on these questions. Cultural regulations, though
they be few at present, are what have forced museums to hand over Native American
artifacts and compensated aboriginal artists when their paintings appear on
t-shirts at the Melbourne airport. Kathleen Johnnie of the Snuneymuxw nation,
asserting her tribe’s rights to its ancient petroglyphs, puts it plainly.
“If the federal government or the global community would provide a different
kind of protection for Aboriginal cultures, we’d use that.... If the global
community would come together as effectively to protect our intellectual property
rights as they’ve come together to protect Coca-Cola or Microsoft, we wouldn’t
use the trademark. We’d use something else.”
Brown notes in his final chapter that even the self-proclaimed
“Capitalist Tool” Forbes magazine has criticized the U.S. Patent and
Trademark Office for “establishing an innovative stranglehold.” Could
it be that, at last, these laws have begun working in favor of someone other
than corporate capitalists?
With its abundance of examples and careful notes, Brown’s
book is a godsend to anyone wading into the debate over cultural ownership.
Also, he puts forth a strong case against sweeping and totalizing protections
of “heritage,” arguing that such proposals threaten to freeze living
cultures in time and “quarantine” them from the multicultural states,
nations, and world to which tribal members, like the rest of us, belong.
But Brown skims over Samuel Warren’s and Louis Brandeis’s
insight of a century ago: that civilization has evolved to the point where law
must protect “man’s [sic] spiritual nature.” “The term ‘property’
has grown to comprise every form of possession—intangible, as well as tangible,”
they wrote. “Thoughts, emotions, and sensations demand... legal recognition.”
Much as we might prefer to settle cultural differences with
sweetgrass and apologies, none of us truly wants to rely on the efficacy of
those measures. In most cases, without “the shadow of the law” to
suggest them, these concessions aren’t even offered. John Stroh III made
his peace offering to Seth Big Crow only after SBC Holding got out of the beer
business. And the Lakota hero’s heirs continue their legal case against
Hornell Brewing Company to this day.
Julie Ardery is a sociologist and poet based in Austin.
What did you think?
Do you subscribe?
If you enjoyed this article and are not a subscriber, we hope you’ll become one. Support independent progressive journalism—subscribe today!
