New York University School of Law
Journal of International Law and Politics
Winter / Spring, 2004
Who Owns Native Culture?
By Michael F. Brown. Cambridge, Massachusetts and London, England: Harvard University Press, 2003. Pp. ix, 305. $ 29.95 (cloth).
In 2001, the Zia Indian community demanded $ 76 million from New Mexico for the use of a Zia sun symbol on the state's flag and letterhead. In 1997, an Australian Aboriginal painter sued a textile firm that featured unauthorized representations of his work, citing the "spiritual harm" caused. In 1999, in the middle of the Zapatista uprising, researchers at the University of Georgia entered into a financial partnership with Mayan communities to discover medicinal plants and secret botanical knowledge in the state of Chiapas, Mexico. In Who Owns Native Culture?
, Michael F. Brown, a professor of Anthropology and Latin American Studies at Williams College, examines cases such as these in order to outline various strategies used to protect indigenous heritage.
Brown's book discusses the battles indigenous peoples and others are waging across the globe for cultural protection. The first chapter focuses on the struggles of American Indian and Australian Aboriginal groups to protect their perceived rights of cultural privacy. Chapter Two documents the attempts [*639] of Australian Aboriginal artists and communities to copyright folkloric art and representations of mythic and religious themes in order to protect their work from replication by textile companies. Later chapters discuss the trademarking of culturally and religiously significant images, the extraction and patenting of traditional botanical remedies, and negotiations over sites that have historic, religious, and recreational value. The final chapters explore the problems stemming from the conflict between indigenous beliefs and modern land use policy, the complexities surrounding the native attempts to secure "Total Heritage Protection" from capitalist globalization, and the political (as opposed to rights-based) possibilities for compromise through negotiation.
Brown's book untangles the complicated knot of ethical, legal, and political questions imbedded in its cases. By presenting each of these issues as both identifiable and interconnected, Brown catalogues each relevant factor, while jumping (in some cases unsystematically so) from one issue to another. For example, in the first chapter alone, Brown examines the ethically questionable practices of the famous Hopi anthropologist H.R. Voth, discusses the nineteenth century legal scholarship of Samuel Warren and Louis Brandeis, questions the policy prohibiting female museum curators from handling sacred Native American artifacts, and analyzes different legal interpretations of property and privacy. The result, however, is an illuminating explanation of the many factors underlying the concept of heritage.
The narrative prose Brown uses to describe factors surrounding cultural protection efforts is both engaging and easy to understand. Moreover, Brown often brings his own experience to bear on these cases. He has studied many of the cultures and cases firsthand, and has personally interviewed some of the key players, including numerous indigenous leaders. The account of the Australian case Bulun Bulun and Milpurrurru v. R & T Textiles Pty. Ltd., for instance, not only offers detailed legal and social analyses, but also hints at his own presence in the courthouse during the trial.
In spite of this personal touch, Brown presents the legal and ethical problems raised by each case in an unbiased manner. With few exceptions (most notably regarding the anti-ethno-botany actions of the public interest group Rural Advancement Foundation International), Brown navigates the [*640] maze of legal and ethical issues with astonishing impartiality. He recognizes the concerns on each side of the issues and refuses to cast any of the players as the villain (even when an obvious injustice has taken place). Brown presents an even-handed account of the facts and the competing motivations underlying each conflict, thereby enabling the reader to independently assess the situation. This impartiality allows Brown to credibly analyze each case and to suggest meaningful solutions to the problems they raise.
Throughout his book, Brown identifies various solutions to problems associated with efforts to protect indigenous culture in modern societies. His final chapter concludes that compromise within current legal and political systems is simpler and more effective than "protective" legislation. Brown's ultimate finding is neither novel nor complex. Rather, the book's value stems from the even-handed and decidedly analytical treatment that he consistently pays the subject matter.
Law Library Journal, Fall 2004
Brown, Michael F. Who Owns Native Culture? Cambridge, Mass.: Harvard Univ. Pr., 2003. 315p. $ 29.95.
The Sundance is a sacred tradition of the Lakota people. Participants ritually prepare for the twenty-eight-day ceremony. In the last four days of observance, dancers surround a specially selected and blessed tree. Some dancers are anchored to the tree by ropes tied to wooden or bone pegs inserted through incisions in their chests. This chest piercing is the most sacred part of the ceremony. Dancing until the skin tears away is importantly symbolic, representing the sacrifice that individuals make for the good of the tribe.
A few years ago, I had the misfortune of meeting a rather troubled person who insisted on showing off his piercing scars to our group of travelers. I was surprised that this decidedly non-Native American had been invited to join in a sacred tribal ceremony. In fact, he had not. This "Sundancer" paid to be a part of a New Age knock-off of the sacred Lakota ceremony, complete with a sweat lodge and sage tea.
The pages of Who Owns Native Culture? contain multiple examples of cultural borrowing or, as some would put it, cultural highjacking. An Australian fabric maker reproduces the designs of an Aboriginal artist with no compensation or acknowledgment. An ethnobotanist prospects in a tropical rain forest to learn the medicinal plant secrets of indigenous healers. Early photographs of secret tribal religious rituals are displayed in a museum. Rock climbers overrun and threaten to damage Devils Tower, claimed as a sacred site by several Indian tribes. Indigenous music from a remote comer of the world is integrated into a pop hit. Imitations from China are passed off as authentic Navajo arts and crafts. The design of a sun symbol, first created on the Zia Pueblo, is adapted and long used on New Mexico's state flag and its automobile license plates. Oneida tableware, Mohawk Carpets, Jeep Cherokees, and Crazy Horse Malt Liquor all rely on some culturally based associations in their marketing.
In an expanding backlash, indigenous groups are battling unwelcome invasions, usurpations, and economic exploitation of their cultures and demanding protection. Author Michael Brown sympathetically, but objectively asks "to what end?" and "by what means?" While clearly seeing injustices, he is not entirely won over by the rhetoric of the cultural protectionists, nor is he persuaded that governments can successfully arbitrate these difficult moral issues with the legal tools at hand.
Brown worries about a tendency to overstate the otherness of indigenous peoples and questions some claims of cultural ownership. He acknowledges that overprotection or isolation of groups will inevitably detract from the worldwide intellectual and cultural commons. He is always respectful, but exposes paradox and hypocrisy when he spots it. He wryly points to the popularity of reggae music on the Hopi Reservation and the incongruity of an American Indian blues guitarist advocating cultural purity.
[*742] Can native cultures be legally protected? Although Brown is an anthropologist, not a lawyer, he offers an informative analysis of legal options. The Protection of the Heritage of Indigenous People, n6 a 1997 United Nations report finding a property right in cultural heritage and setting out the "Total Heritage Protection" approach, is contrasted with the market-based protections of intellectual property law. He discusses a variety of legal theories, looking for reforms that will enhance the usefulness of intellectual property protections in the realm of indigenous culture and heritage. In the end, Brown cautions against overreliance on legalistic and regulatory solutions. He optimistically suggests that negotiation can be used to find a compromise between the excesses of cultural exploitation and the secreting of diverse cultures behind protective doors closed to the larger community.
This is an important book about troubling and unresolved policy questions. Legal systems, whether or not they offer the best solutions, are already dealing with some of these issues. The Native American Graves Protection and Repatriation Act n7 is a recent example in United States law. Over the next decades we will see an intensified international debate about the legal protection of cultures, necessitating a concurrent discussion of the meaning of culture and the appropriate scope of cultural ownership. Who Owns Native Culture? is highly recommended for all law libraries as both a thoughtful and entertaining starting place for understanding the issues and erecting a frame for the debate.