Property Rights, Property Wrongs


Property Rights, Property Wrongs


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.