[The Montana Professor 16.1, Fall 2005 <http://mtprof.msun.edu>]

Who Owns Native Culture?

Michael F. Brown
Cambridge: Harvard University Press, 2003
315 pp., $29.95 hc, $16.95 pb

Lisa Aldred
Native American Studies

In 1986, I worked as an attorney on behalf of the Big Mountain Navajo, who faced forced relocation by the federal government. The case, Manybeads v. U.S., contended that the government's removal violated Navajo rights to religious freedom because their spiritual practices were so intrinsically tied to their homelands that they could not conduct their religion elsewhere.

During that time, I first encountered members of the New Age movement who professed their intent "to help" the Navajo. They interrupted ceremonies with Grateful Dead style dancing; criticized elders for their mutton stew diet, claiming that vegetarianism was more "natural" and therefore more "Indian"; and created all kinds of other havoc. Now, Native American spiritual beliefs and practices have been commercialized by various entrepreneurs tapping into the New Age market. Shipboard "Sundances," accompanied by wine and cheese, are offered for hefty prices, catalogs advertise "do-it-yourself" Native American Spirituality kits; and white authors, claiming to have been mentored by nebulous Indian medicine men and women, write best sellers. The First Amendment arguments in Manybeads failed when in 1988 the Supreme Court rendered an opinion in Lyng v. Northwest Cemetery Protection Association. Here, three California tribes attempted to enjoin the building of a logging road through sacred ceremonial sites located on National Forest lands. Conceding that the road would have severe adverse effects on the tribes' religions, the majority nevertheless ruled that any religious rights held by the Indian plaintiffs were outweighed by the government's right to use its land. The legal issues involved in sacred sites became an important part of my own research; moreover, the commodification of Native American spirituality by the New Age movement has been the subject of the bulk of my publication endeavors. Therefore, the book, Who Owns Native Culture? by Michael F. Brown, which discusses both the Lyng case and the New Age Movement, is of great interest to me.

The book focuses on recent controversies over outsider use of aspects of native cultures as well as indigenous peoples' efforts to protect their societies from this cultural appropriation. Brown is particularly concerned with legal claims made by indigenous peoples that turn on the concept of cultural property. He lays out his key questions in the introduction:

To what extent can law control the movement of ideas? Does it make sense for ethnic groups to define their cultural practices as property that cannot be studied, imitated or modified by others without permission? How far can democratic states go to provide indigenous peoples with cultural protections without violating the rights of the general public? What is the future of the public domain, which is squeezed on one side by the privatizing logic of the world's corporations and on the other by native-rights activists promoting novel forms of collective copyright? (7)

The first seven chapters set forth case studies involving claims made by indigenous peoples seeking to protect their cultural heritage. Brown's detailed and careful reporting of these cases is one of the major strengths of the book. The first chapter examines controversies over sacred aspects of native culture, including those arising from the New Age movement, and Hopi attempts to retrieve photos depicting secret rituals from non-tribal archives. Regarding the New Age, Brown states that it is hard to imagine a convincing legal argument for restricting the imitation of a group's religious practices. He advocates instead "moral education that sensitizes outsiders to the destructive impact of their misguided religious enthusiasms", reasoning that "appeals to shared notions of privacy and dignity are likely to be more effective than claims justified in terms of the novel proposition that a community 'owns' its religious symbols and rituals" (40). In his analysis of the Hopi case, Brown concedes that there "may be a place for tightly framed legislation in cases such as these," but concludes that the administrative costs would outweigh any benefits. Again, he opts for a non-legal solution, suggesting a stricter research ethics code and archival policies that "sensitize" staff members to such issues (42).

The next two chapters deal with the appropriation of images from native cultures. The first involves a lawsuit brought by Aboriginal artists against Australian textile manufacturers' use of traditional designs. Brown believes the Australian lawsuit "exemplifies the high profile that intellectual property--an arena encompassing copyright, trademarks, patents, and trade secrets--has attained in global discussions about indigenous rights" (54-55), adding that "many lawyers and activists believe that intellectual property law holds the key to heritage protection" (55). Brown believes there are inherent problems in the nature of copyright law negatively affecting its use by indigenous peoples to protect their cultural heritage, namely the limited time of protection. However, Brown's deeper concern seems to be the problems he thinks it will cause for society at large, including negative affects on the flow of ideas (59), and the strain placed on the legal system if other ethnic groups bring similar claims (66).

Chapter Three, "Sign Wars," addresses Zia Pueblo protests over the appropriation of their ancient sacred sun symbol by the New Mexican state government on its flag, as well as commercial use of the symbol by corporations, such as Southwest airlines. Brown examines native activists' emphasis on trademark law and the moral-rights element of copyright to protect their cultural heritage in this case, because these claims offer longer and more complete protection (73). Brown admits that "at first glance, native concerns seem tailor made for a moral rights strategy" (73) because they are perpetual and designed to defend against defamatory use of a work. However, Brown finds a number of obstacles to their use: (1) the question of whether aspects of native cultures qualify as "works" under copyright law; (2) the concern as to how defamatory use might be defined and the fear that this ambiguity will inhibit media coverage of indigenous peoples; (3) the fact that the moral-rights dimension of copyright law is underdeveloped in the U.S. and unlikely to change in the future. Brown concludes that "in settler democracies, native design styles have become part of the warp and weft of mass culture and visual expressions of national identity. Purging them would require draconian social engineering" (91). Once again he favors a non-legal approach, noting with enthusiasm that Southwest Airlines made a contribution to Zia Pueblo's scholarship fund for the use of its symbol.

Chapter Four explores the indigenous protests over pharmaceutical companies patenting traditional native knowledge of the medicinal use of plants. Brown favors corporate patenting of the medicinal knowledge of plants gained from indigenous peoples in various parts of the world. As he justifies it, "those who bear the financial risks associated with rigorous testing should also be allowed the prospect of financial rewards conferred by the patent systems" (134-35). Similarly, Chapter Seven explores controversies over the use of indigenous environmental knowledge, or "Traditional Ecological Knowledge" (TEK), as it is called. TEK is knowledge possessed by indigenous peoples based on centuries of observation and experience. A number of land management policy makers have favored incorporation of TEK in their planning, especially with regard to environmental protection. Some organizations representing indigenous peoples have voiced objections to the use of TEK on the grounds that it violates their intellectual property rights. Noting that some of the objections are based on not being credited with authorship or revelation of culturally sensitive material, Brown is nevertheless convinced that "more often, though, references to intellectual property reflect a belief that TEK has inherent economic value" (207). Brown is very alarmed by his perception that "resistance to piecemeal protection of native heritage has inspired proposals that indigenous cultures be shielded in their entirety" (209), an approach he calls "Total Heritage Protection."

Brown is against enshrining these protections in law, arguing that law often has different consequences from those intended; moreover, regulation by law results in the proliferation of bureaucratic controls, which in the case of protection of native heritage "are likely to foster bureaucratized and lifeless cultures that operate by a proprietary logic perilously close to the corporations they seek to resist" (227). Brown discusses what he views as the weak points of The Native American Graves Protection and Repatriation Act and The Indian Arts and Crafts Act to back up his argument.

Chapters Five and Six deal with sacred site land cases in the U.S. and Australia. In Chapter Five, Brown focuses on the Devil's Tower case in which the National Park Service asked for a voluntary ban on the part of climbers during June when Native Americans use this sacred site for ceremonies. A proposed mandatory ban was found unconstitutional on the basis of the Establishment clause. Brown finds this voluntary ban an excellent example of "negotiating mutual respect," a process he favors over legal protection. As he elaborates, "voluntarism foregrounds 'the process of public justification, communication, and deliberation upon which the continuing vitality of a democratic regime depends..." (171). Noting that "this approach requires a thoughtful conversation" (171), Brown reasons, "If that conversation leads to greater mutual understanding, in the long run it will do more for Native Americans than would a rights-focused imposition of respectful behavior imposed by the state and enforced by its coercive power" (171-72).

Instead of narrowly applied legal measures, Brown favors negotiations of "mutual respect" when controversies arise over the use of indigenous culture, citing the voluntary ban at Devil's Tower as a successful example. He calls his approach "imaginative realism," a term that embraces "less formal approaches--programs of public education, stricter ethics codes, institutional policies that sensitize staff members to the impact of specific kinds of field data--even if it recognizes that no effort to cleanse the world of hurtful information will ever enjoy complete success" (42). Believing that native heritage is not effectively protected by law, Brown reframes controversies as moral, rather than legal, issues: "the crux of the matter does not lie in irreconcilable views of ownership, even where they exist. It is instead a matter of dignity. Reframed as a question, we should be asking not: "Who owns Native culture?" but "How we can promote respectful treatment of native cultures and indigenous forms of self-expression within mass societies?"

At the heart of Brown's reasoning is the contention that in a pluralist liberal democracy, all ethnic groups must engage in dialogue about their cultures with one another.

I find Brown's suggestions of using "imaginative realism" to resolve these controversies to be naïve and impracticable. Underneath these conflicts lies a long history of inequities in power and economics, not to mention deep-seated cultural differences. Imaginative realism is a vague concept and Brown never attempts to spell out how this concept could be used in concrete situations in contemporary conflicts. Mutual respect would be wonderful, but by the very fact that there are so many unresolved issues, such as those described in the book, where mediations have failed, mutual respect seems like a pipe dream at this point. Another of Brown's suggestions is that educating and sensitizing people to indigenous cultural privacy issues could be effective. From my own experience and research, New Age people have been told by many Indian peoples that their ceremonies are private, even going so far as distributing leaflets explaining why. Perhaps some individuals listened, but the wannabe Indian spiritual craze is still quite strong. Similarly, his suggestion that institutions implement policies of "sensitization" is a pantywaist solution in my opinion. How will such cultural sensitivity workshops work in an area where the issues are complex and there are strong power dynamics underlying them?

Moreover, there are weaknesses in Brown's understanding of both Federal Indian law and Intellectual Property law, In the Crazy Horse Malt Liquor controversy, Native American activists protested the connection of this highly respected leader with the sale of an alcoholic beverage. The United States Patent and Trademark Office agreed that the use was demeaning and refused to grant a trademark. Similarly, Congress passed a law that specifically banned the association of Crazy Horse's name with any alcoholic beverage. However, the courts overturned these decisions on freedom of speech grounds. Despite Brown's contention that this case exemplifies the failure of intellectual property law to protect native heritage, the Crazy Horse Malt Liquor case could be read differently. The U.S. Patent and Trademark Office, as well as Congress, agreed the trademark was offensive; it was only the judiciary that did not.

Brown also glosses over the notion of sovereignty and how it might affect issues of native cultural protection. He acknowledges that cultural heritage advocates argue that "the principles of indigenous sovereignty and self determination, so central to political negotiations with the state, should set the terms of debate in struggles over music, art, and access to sacred places" (9-10). He instead reads the situation differently, believing that the crux of the problem is one of "dignity" involving the question of how to achieve respectful treatment of native cultures and indigenous forms of self-expression within mass societies. However, he never fleshes out how such dignity can be achieved. Brown goes so far as to describe "sovereignty" as a "word with talismanic properties" (224). Sovereignty is not just a word, talismanic or not; it is a legal concept which applies to federally recognized tribes as well as other nations. Although in the early 1800s, the U.S. Supreme Court reduced the status of tribes from having absolute sovereignty to that of "domestic dependent nations," the tribes still retain a fair amount of sovereignty. Arguably, they would have intellectual property rights based in international law, rather than U.S. patent, copyright, and trademark law. As Brown himself recognizes, the U.N. supports laws promulgated to protect indigenous cultures (10). Yet, Brown clearly does not believe in the sovereign status of tribes: "The sovereignty principle has an appropriately weighty role in indigenous peoples' efforts to redefine their political relationship with the nation-states in which they find themselves. When applied to complex cultural flows, however, sovereignty is only a metaphor, and a deceptive one at that" (224-25).

Brown also minimizes the power plays and inequities involved in these disputes. He implies that these conflicts are generated by cultural misunderstandings that can be cured by culturally sensitive training. Only at the end of the book does he address the power issues at play here:

The matter of human rights and their precarious standing in many places raises the question of power. The forces arrayed against indigenous peoples in their struggle for control of cultural resources are undeniably strong.... But power takes many forms. It would be a mistake to underestimate the moral weight of aboriginal claims, which have far more influence in the world than one might expect...." (245)

His contention that aboriginal claims have far more moral weight than one might expect is not backed up by evidence. The colonization of indigenous peoples set up a power differential that has not been thoroughly overcome. Second, there are very few Indian people in the federal government and the Indian populations are very small compared to other groups. So, how much of a voice do indigenous peoples have in national politics? Most indigenous peoples live well below the poverty line; they lack the funds for lobbying and election efforts.

In my opinion, Who Owns Native Culture? is an excellent example of the failure of liberal humanist politics. Brown ignores the reality of power differentials, economic inequities, and social prejudices involved in these heavily contested conflicts. His solutions, such as "imaginative realism," "mutual respect," and "cultural sensitization" may sound heart-warming on paper, but lack both practicality and probability. Brown believes he is an advocate of the protection of Indian peoples' cultural protection, but a close reading of the book suggests he wants a happy multicultural nation where each culture is a patch on a quilt with EuroAmerican culture at the center. He imagines a happy utopia where people join together and dialogue with mutual respect without the messy hindrance of politics, power differentials, economic inequities, or ethnic prejudices.

Nevertheless, I would recommend Brown's book. The topics covered and the information conveyed are important to contemporary Native American Studies. In addition to being of interest to Native American Studies scholars, the book is also relevant to anthropology in its treatment of how anthropologists have historically studied Native Americans including ethnography, archaeology, ethnohistorical archives, and museum collections, as well as responses to tribal critiques of the field. Scholars in critical consumer cultural studies should find the issues surrounding "Who owns native culture?" pertinent to their field. Additionally, the book should provide thought-provoking to legal scholars researching intellectual property law.

[The Montana Professor 16.1, Fall 2005 <http://mtprof.msun.edu>]

Contents | Home