By Michael F. Brown, Harvard University Press, September 29, 2003, 9780674011717
Who owns native culture? An excellent question. One that I hadn’t thought about before. Michael Brown doesn’t give an answer other than “negotiate carefully”. Laws (“Total Heritage Protection”) are not the answer, but they help create a framework for negotiation. That’s difficult. It’s not neat, and it gives me a better understanding of politics in general.
I child will say “I’m not going”. An adult will say “I do not want to go, but I will consider it.” I think much of the political positions in the world today are child-like. This book tells me that negotiation between adults will solve hard problems, but everybody needs to want to work towards an agreement, in good faith. In this sense, this book is quite hopeful about the successes of the past, and how we should proceed in the future.
[k135] My centrist stance is inspired by what I found in many of the places I visited: thoughtful people coming together to negotiate workable solutions, however provisional and inelegant. Their successes, achieved one at a time, convinced me that grandiose, one-size-fits-all models of heritage protection are likely to hinder rather than encourage improved relations between native peoples and the nation-states in which they find themselves citizens.
[k312] A right to cultural privacy is presented as self-evident and morally unassailable, even if its scope remains unspecified.
[k416] Privacy rights, for example, cannot be transferred to others, and they end when an individual dies. Property rights, in contrast, can be transferred to third parties and passed to succeeding generations. Nevertheless, a tidy separation of property and privacy is impossible within a market system that turns identity into a commodity.
[k866] If the USPTO were to declare tribal insignia equivalent to other government symbols, as some Indian activists demand, then tribes would be unable to license them for commercial use, thereby losing a potential source of income.
[k903] “If the federal government or the global community would provide a different kind of protection for Aboriginal cultures, then we’d use that. We did what we had to do given the resources that were available. 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.
[k922] The distinction between an idea and its expression so crucial to copyright is unknown to them: Kiowa individuals own ideas and personal life experiences.
[k925] Critics of contemporary intellectual property laws and their effects on native peoples often insist that copyright and patents are unknown in non-Western societies, which treat information as communal property. The Kiowa case demonstrates that this claim is misleading. There exists a rich ethnographic literature detailing the complex rules about knowledge and its uses observed in countless indigenous societies. It was not unusual for Indians of Plains tribes to buy and sell personal songs, blessings, visions, and other expressions of spiritual knowledge.
[k933] After Australian tee-shirt companies were sued for infringing the copyright of Aboriginal artists, they began to print shirts with fake designs.
[k937] In Onassis v. Dior, a landmark case dating to 1984, the New York State Supreme Court ruled that the fashion designer Dior had violated the rights of Jacqueline Kennedy Onassis when it published an ad that showed an Onassis look-alike named Barbara Reynolds standing with various other celebrities who played themselves. The court in effect determined that Barbara Reynolds no longer retained exclusive ownership of her own image because it resembled that of someone far more famous.
[k941] Real and counterfeit are no longer legally separable where familiar images or sounds are concerned. Shouldn’t the same logic apply to native cultures, whose authentic identity is also at stake?
[k946] However much one sympathizes with the idea of discouraging tasteless or hurtful quotations of native iconography or design styles, Thomas’s blanket condemnation of all references to indigenous cultures by non-indigenous artists or writers drifts perilously close to a semiotic version of ethnic cleansing.
[k949] Purging them would require draconian social engineering. Place names drawn from indigenous languages are ubiquitous in the United States and Canada, as they are in other settler nations.
[k969] The book that you hold in your hand may be destined for obsolescence now that university presses are offering electronic copies to research libraries in lieu of physical ones. Not that it matters much, since the book’s royalties are already compromised by photocopy machines and Internet-based marketing systems that put used copies into the hands of customers with startling efficiency. The history of attempts to control the products of replicative technologies gives one little reason to hope that indigenous heritage will prove any more protectable than other cultural resources.
[k1039] In little more than a decade, ethnobotany, which Richard Evans Schultes had helped to define as a heroic field dedicated to salvaging useful native knowledge, had become for its critics a simple instrument of theft. This was a bitter pill for ethnobotanists, most of whom had entered the profession because of their interest in, and personal commitment to, indigenous people.
[k1046] In granting a utility patent to Chakrabarty, the Supreme Court reversed decades of prior rulings, which held that life-forms and other “products of nature” were not patentable, although novel ways of processing and using them were.
[k1063] As a counterexample he cited India, which has a wealth of talented chemists, doctors, and biologists but is hobbled by weak patent laws that discourage the invention of new drugs and medical techniques.
This view has merit, but it also skirts inconvenient facts. Patents and copyrights are intended to encourage innovation, yet the proliferation of overly broad patents and the aggressiveness with which corporate patent holders defend them have, according to some experts, begun to inhibit original research.
[k1066] Research universities, once committed to the free exchange of scientific information, now guard their intellectual property, mindful of the income that it may eventually generate.
[k1071] The for-profit nature of drug development, however, privileges the medical needs of the affluent over those of the poor. Hence the vastly greater research expenditures on conditions such as diabetes and high serum cholesterol than on malaria and diseases associated with poverty. As public-sector research gives way to private enterprise, it is easy to forget that many of the most effective pharmaceutical products of the modern era-among them the polio vaccine, penicillin, and streptomycin-went into production unburdened by licensing fees and in some cases unprotected by patents.
[k1080] Norwegian researchers have criticized legal norms that allowed the firm Novartis to develop cyclosporin from soil samples collected in Norway without any requirement that some portion of the drug’s profits be returned to the country of origin.
[k1090] Perhaps most familiar is the campaign of British botanists, led by Sir Clements Markham, to smuggle specimens of several species of Cinchona, the source of quinine, and the Brazilian rubber tree, Hevea brasiliensis, from South America to England and then to British colonies in Southeast Asia for industrial cultivation there. The Scottish botanist Robert Fortune accomplished a similar feat with tea, which he collected in China in the late 184os and introduced into cultivation in India and Ceylon.
Useful plant and animal species have moved to new locations as long as human populations have been in contact with one another, of course. The signature dish of southern Italian cuisine would not exist if tomatoes, a New World crop, had not been introduced to Europe by travelers returning home.
[k1099] Controversy continues over a utility patent issued to a Texas company for Basmati rice that India claims was developed from genetic materials originating in South Asia.
[k1117] But the granting of patents for plant varieties based on material freely shared by farmers in other countries symbolically underscores the lack of reciprocity in relations between the peoples whose ancestors discovered or bred these plants and the corporations that now claim them as a monopoly.
[k1351] “The company talks about ‘reciprocity’ in its relations with the indigenous peoples who it taps for resources and knowledge; but so far the indigenous people who are Shaman’s sangre de drago sources have received a few thousand dollars while Shaman has raised millions in the US capital market.” RAFI neglects to mention that Shaman-or rather, Shaman’s unfortunate investors-also lost those millions.
[k1354] At times it is hard to tell whether the critics are more offended by Shaman’s profit motive or by its failure to realize a profit. Few mention that by its own reckoning Shaman has disbursed $3.5 million to the countries and communities with which it is collaborating.
[k1457] Many would be willing to pay significant bioprospecting fees and perhaps enter into profit-sharing agreements with developing countries, which would simply become part of the cost of doing business. To make this happen, however, the process of negotiating such arrangements must become faster and more transparent than it is at present.
[k1992] No just society rides roughshod over the feelings of citizens, whatever their ethnic origin. But when heritage-protection laws move in an emotivist direction by aiming to protect the feelings of native populations from every possible indignity, they travel down a dangerous road-one that, among other things, invites similar demands from groups whose goals and values may be distasteful or destructive.
[k2070] Emotional public debate about an allegedly sacred site, Gelder and Jacobs argue, “transforms that place into nothing less than a `site of significance,’ with such immense reach and such powers of affect that even the skeptics succumb to it.” Which is a roundabout way of saying that intense public conflict may imbue places with a sacredness that they never before possessed.
[k2107] Resisting another group’s conceptual framework is a proven strategy for solidifying social identity and asserting agency in situations of conflict.
[k2141] Can the cultural elements of complex societies truly be sorted and reorganized so that each is returned to its point of origin? What would be the social and political costs of such a campaign?
The most startling feature of the Daes Report and the many similar documents it has inspired is how little their authors worry about the impact that new regulatory regimes are likely to have on indigenous life. This terrain was mapped by Max Weber nearly a century ago, and his insights continue to haunt anyone who struggles to understand the modern condition. A powerful current of modernity, which Weber famously linked to Calvinist theology and the rise of capitalism, is the replacement of moral thinking by impersonal, calculating rationalism.
[k2148] In the interests of equity, we institute ever more complex legal procedures that diffuse responsibility so completely that when things go awry it is difficult to assign blame.
[k2151] Weber considered bureaucracy inescapable and in his darkest moments saw it as the framework for humanity’s progressive enslavement.
[k2155] One might reasonably expect that anyone concerned about the vitality of indigenous societies would hesitate before turning them into another experiment in the Law of Unintended Consequences.
[k2156] When law encompasses formerly undefined elements of social life, Foucault argues, it has a pronounced tendency to impose regulatory frameworks that shift power to regulators.
[k2199] In anthropology, which probably more than any other academic discipline gave culture high standing as an analytical category, culture’s stock is at its lowest point in nearly a century. Its critics dismiss it as inherently totalizing (meaning that it implies an internal coherence that doesn’t exist in reality), essentialist (implicitly reducing complex human behavior to a limited set of forces or essences), and tied to boundaries that are difficult or impossible to identify. The sitution is not helped by the way people talk about culture in the mass media. One now hears frequent references to the culture of corporations or occupational groups, and some observers of contemporary social life feel comfortable declaring that gays and lesbians, the disabled, and even women have distinct cultures, an assertion whose accuracy many-although probably not all-anthropologists would reject.”
[k2205] Multiculturalism is informed by a notion of culture with deep roots in German philosophy, which identifies within each society a Volksgeist, the spirit of a people, that sets the society apart from all others. In this view, cultures are self-contained moral universes that define values, practices, and identities.
[k2210] Traditional liberalism is held to focus only on the rights of individuals and therefore to overlook the essential role that cultural communities play in shaping the individual. In fact, however, few liberal theorists deny that groups have important rights that merit legal protection. The struggle is not over cultural versus individual rights but over where society draws the line of demarcation between the two.
The case for cultural rights is strongest when directed to education and language policies and to questions of local political control and representation. When applied to matters of heritage protection, however, cultural-rights perspetives reveal serious shortcomings. Because culture is an abstract concept, its boundaries are contested and evanescent. Exactly where does one culture end and another begin, both in space and time? On what grounds should one group’s claim to an element of culture be considered more compelling than another’s?
[k2219] At the very least, it seems reasonable to acknowledge the inevitable fuzziness of cultural identity when pursuing solutions to problems of cultural ownership.
[k2223] Even if we accept that continued use of the name “Redskins” is undesirable, how persuasive is the assertion that it causes “irreparable, substantial harm”? Native American cultures have survived five centuries of pestilence, military conflict, and dispossession. Compared to these catastrophes, in what meaningful sense does the name of a professional football team put their survival at risk?
[k2225] For the article’s author, the Redskins case signals the direction in which legislation must go: toward the aggressive protection of symbols “whose deprecation would have an impact on cultural survival.” Here we enter a funhouse world in which any use of symbols that a society (the whole society? merely a segment of it?) finds offensive becomes a mortal threat.
[k2237] The outspoken writer Sherman Alexie, a Coeur d’Alene Indian, plays in a blues band. When asked to justify his appropriation of an African-American musical form, he insisted that his music is “Indian blues,” or “Crazy Horse with a slide guitar.”
[k2242] The ubiquity of these processes of cultural recombination must not be seen as compromising the authenticity of indigenous individuals or groups, but it does underscore the folly of cordoning off heritage as a discrete domain that can be defined and defended by law.
Despite the narrowing gap between native and non-native practices (or perhaps because of it), proponents of Total Heritage Protection are strongly inclined to overstate the otherness of indigenous peoples.
[k2253] Seconds later, Armand Minthorn, who has actively campaigned for the repatriation of the Kennewick remains to the Confederated Tribes of the Umatilla Indian Reservation, echoes Harjo’s sentiments: “We already know our history. It may not be written down, but we already know our history.
Would we so readily nod our heads in agreement with Harjo and Minthorn if they were officers of the Sons of Confederate Veterans, an organization dedicated, in its own words, to “preserving the history and legacy of these heroes, so future generations can understand the motives that animated the Southern Cause”? What if they were Serbian nationalists or Shining Path cadres? As a rhetorical strategy, a group’s insistence that it, and only it, knows its history maybe useful; as public policy in a multicultural state, it is patently suicide. The reality of pluralist democracy is that groups living together must be free to talk about one another’s history and culture. Without these exchanges, they cannot build a durable civic life.
[k2267] Many–perhaps most–elements of culture do not answer to a logic of possession and control, to a vision of hermetically sealed social units realizing their destiny in complete autonomy.
[k2277] To declare, in effect, “The use of what we claim to be our information must be subject to our laws” ends the discussion right where it must begin.
[k2280] But the greater challenge is to find a framework for agreement between cultural groups, not within them.
[k2286] Yet it is a totalizing model, and such approaches have a disturbing tendency to reshape the world in unforeseen and harmful ways. In this case they are likely to foster bureaucratized and lifeless cultures that operate by a proprietary logic perilously close to that of the corporations they seek to resist.
[k2321] The archives case illustrates a version of liberal pluralism that might be called “multiculturalism without illusions.” This approach accepts that conflicts over values are inevitable when societies encompass groups that practice different ways of life.
[k2326] It is in the nature of rights to seek absolutes.
[k2331] Value pluralism allows for the protection of basic human rights and, conversely, for recognition that certain forms of behavior are genuinely wrong. With the exception of a small set of core protections, however, everything is subject to negotiated solutions that Gray insists are “usually perceived to be more legitimate than legal procedures which end in the promulgation of unconditional rights.” The major advantage of political solutions is that they are never final; they can change to reflect changing sentiments and shifting local realities.
[k2391] Advocates of the indigenous “we own our culture” perspective find themselves in the odd position of criticizing corporate capitalism while at the same time espousing capitalism’s commodifying logic and even pushing it to new extremes.
[k2486] Civil-society strategies that spurn legislative solutions in favor of negotiated ones run counter to an influential strain of judicial thought that sees law as the most effective instrument for shaping attitudes and social norms.
[k2489] Legal scholars like to point out that, in liberal democracies, laws work as much through networks of information as by overt practices of enforcement. We follow the law because we are socialized to do so.
[k2514] Settler democracies must be held accountable for failure to honor their obligations to indigenous citizens.
[k2538] Members of different societies need to talk about one another if they hope to get along.
[k2545] If I am critical of those who seem eager to defend a world of discrete, perfectly bounded cultures that never existed, it is because I am so impressed by the hope and pragmatism of indigenous elders, museum curators, archivists, and cultural-resource managers who are negotiating their way to more balanced relationships. They, far more than the activists and academic theorists who set the terms of debate about cultural ownership, understand that progress will be built on small victories, innovative local solutions, and frequent compromise.