Natives cultures see all its environment as sacred: “art, music, folklore, even landscapes are sacred”.
In 2002 the Australian kangaroo and the emu symbols were removed from the coat of arms of the Old Parliament House in Camberra, since they were “cultural property” of the Aboriginal people. In Peru, native farmers denounced a patent granted to an American firm that processes the maca, a crop plant used by the natives for centuries to increase the fertility of livestock as well as sexual acitivity in humans. In India a public database is available to anybody interested in secular Indian healing methods and plant medicines, so making it more difficult to register patents in this field of medical knowledge. The Danish toys firm Lego’s web was disrupted by Maori internauts because of the use of Maori words to identify their “Bionicle line”. The New York Rockefeller Foundation is committed to help native cultures intellectual property rights. A new concept is developped: that of culture sovereignty.
Native culture, its shared heritage and collective intellectual property rights, include the return of religious objects. Culture is known as a “unique mix of beliefs, practices, values, and institutions shared by the members of a group” (a clan, a tribe, a community, a society), shared understandings. Cultures develop in a dialectical confrontation against other cultures. The mixing of cultures interinfluencing each other is called “creolization” (criollaje?). The “sweat lodge” Indian rite for purification, or faux “medicine wheels”, are seen as blasphemy and a cultural aggression when practised by white men in unappropriate ways. The unlimited reproduction of native symbols undermines their original authenticity and jeopardises the survival of the tribes to whom they belong, not to tell about the denigration effects when they are used for commercial purposes.
Settler societies as US or Australia, whose population is so ethnically varied, need monuments (In “X” Memorial) as symbols of shared heritage to improve their integration and cohesion if they want to mobilize their population for national defense or other collective tasks.
Genocides that stain colonial histories have forced UN Protective Declarations and, in USA, the
National Historic Preservatioon Act of 1966, the
American Indian Religious Freedom Act (AIRFA) of 1978 and the
Native American Graves Protection and Repatriation Act (NAGPRA) of 1990.
Controversies about law controlling the movement of ideas, the feasibility of collective copywright and its contradicition with the rights of the general public. Turning culture into property may block the necessary and accepted free change of ideas. (Debate #1). Priceless collections well maintained in Museums will have to be retourned to their tribes, lacking resources to maintain them properly, where they will be used until worn out.
Four main areas worth of protection: religious symbols, botanical knowledge, sacred lands, restitution of symbols and of human remains.
1. The “Hopi” Case
The Hopy Indian tribe of Arizona was visited by the Mennonite Missionary Henry R. Voth (+1931) who, be himself invited or rejected, took about 2.000 pictures of their people and rites that were widely reproduced and sold out.
Pueblo’s Hopy people offer a withering critique against NAGPRA for being written to cover all Indian tribes while the Hopi deserve a law dealing with their specific circumstances. Their neighbours, the Navajo tribe (nation), are producing kachinas dolls for sale (small carved and painted images of Pueblo spirit-beings) what threatens the income of Hopi artists. Besides, the Navajo claim Hopi sacred places and beliefs for themselves, what forces the Hopi to keep secret as much as possible everything concerning their symbols and rituals (“right of cultural privacy”). Since the Navajo and the Apache inhabit the region since the XV century b.p., the future of eventual Puebloan sites excavations would be determined by the Navajo Nation.
Since the right of cultural privacy is a shield from outer unwanted scrutiny, the author finds self-contradictory its legal enforcement, once we agree that cultures are defined by opposition to other cultures and dialectical contrast despite mutual borrowings. “Collective” privacy is a new (contradictory?) institution.
Special means for their cultural symbols and rituals protection are to be involved when we see the new technologies making it possible to spread the longest information in the shortest time, from mass media to internet, passing by unlimited copies’ reproduction.
Keeping secret the rituals and contents of a culture may confront the freedom of ideas and expressions but may be needed to preserve them from damages that irresponsible outsiders could do them by celebrating their rites in unappropriate ways or with umproper words. Secrecy, which gives power and status to the few ones who know them, could be unavoidable for the sake of their survival. Those pretending to worship their ritual parctices and beliefs will have to be accepted (or adopted) by the tribe if they want to belong to them.
The author again shows his shortcomings in understanding the natives sacred world when he defines “sorcery” as antisocial force, unable to see that magic practice was a mental tool, worthy of pride as much as of respect, that made it possible our rational mind stage nowadays. But being rational today should mean to understand our ancestors behaviour with regard to magic attitude and praise them because of it. (Here Prometeo and Lucifer?)
The property rights belong to the entire tribe not to individuals. One does not see any problem in this issue, since we do recognise groups as (legal) persons with rights and duties exerted by their representatives. On the other hand, it is really a specter what the author is talking about when he dares to mention (page 36) the “specter of censorship” in the pretended clash between the right to cultural privacy and its “universal recognition and enforcement” (with unforseeable fatal consequences? we dare to ask) on the one hand and, on the other, the free current of ideas and their expressions, all of which seems to make him scare at universal dangers, in the name –is supposed- of unrational fears so brashly exposed. He textually says (page 37): “Nations are not thought to possess a right of collective privacy that prevents outsiders from investigating about how governments or individual citizens behave… Cultural privacy could easily be used to shield a governing faction from much-needed scrutiny”. And by saying that he not only places these about-to-die cultural remnants at the same level of the States-Nations but also confuse our right to control our governments with our right to control theirs.
No need to say that we stand for the overcoming of any kind of sovereignty and for human rights protection even when this implies international interventions in domestic policies. For instance, protection of minorities such as Watutsi in Rwanda, Chechens in Russia, Uigurs in China, Chiapas zapatists people in Mexico, Palestinians in Israel, or Kurdish in Turkey/Iraq/Iran borders, or women at large in Aphganistan. It is in this framework that we accept exceptions to cultural privacy of native people, such as the practice of clitoridectomy in the young girls, or bloody transfussion for children, when the case come to view. Exceptions however are not to be seen as arguments to void the general rules, since the latter are confirmed by the former.
He also adds that privacy rights die when the person protected dies while property rights are transferred to third parties and passed to succeeding generations. So what? What prevents “privacy property rights” to be transferred to nex generations? “Privacy” being protected by means of “property rights” is better that being unprotected. If in this way “identity” turns into a “commodity” (page 38), what has the author to say about the insurance system where accidentes, mutilations and even death are monetary compensated?
M.F.Brown seems not happy with a broad extension of the term “sacred world”, and asks for “convincing evidence that use of these images causes real harm” (page 42), narrowing the issue to a simple procedural aspect such as the “burden of the proof”. And he tries to reinforce his argument by reminding that, once the pictures have spread out, there is no way to get them back. The author dares too far when he expresses his opinion that “what indigenous peoples really care about is the economic value of their culture”. I dare to assert that the author understands very little, if anything, about the meaning, feelings and contents of their sacred world. Take this instance (page ), when, dealing with natives placing the entrance to, and exit from, this world through eastern and western Gates (Long Island and California??? respectively), he dares to comment “they may be trying to find the north Gate and before soon the south Gate…” (It is contempt what makes he ask … lo de los 4 puntos cardinales, ahora se inventaran la entrada sur…). There is neither North nor South Gates to be found, he should know it, but East and West are important, as important as matters for their survival. Should he be acquainted with the native sacred world, he would know perfectly well that in all cultures at old times tombs were orientated to he east or to the west, since Death was where Life started, and the human corpses were seeds to be buried in order to give rise to new alive beings and crops (both in their tribes as in Nature at large), so that they should look at Life Giver Sun (rises or sets) to imitate its life discours. And this happened to be thus all over the world, not to precise Mesopotamy, Greece or the Mediterranean coasts. Moreover, coming to Life or going to dead world, both were to be made from/to waters, as the sun performs everyday in the Atlantic and/or the Pacific oceans (as it did in western European coasts, or west Middle East, or west to the Egyptian Nile river). All of which is elementary knowledege of our ancestors livings and beliefs. Thus it is the author contempt (lack of knowledge, patriarchal ethnocentrism) toward those ignorant wilde indigenous people (he does not call them expressely that but it is implicit in the way he talks) what makes him to ask himself “ n”.
2. The Australian “Mabo” case and Bulum Bulum v. R. & T. Textiles Pry Ltd.
Darwin is the capital of Australia’s Northern Territory, the most conspicuously cultural one. It was there where in 1997 a legal suite was brought to the court against Australian manufacturers and retailers by Aboriginal artists who claimed that natives drawings had close relationship to the spirits who animate the land, and therefore could not be copied by anybody for commercial purposes (nor any other purposes whatsoever). Aboriginal art is a way of sharing the land: the painting is the visual aid, the map, the code, and the very terrain under which a world of meaning lies buried. For these native people “sacred knowledge” can not be separated from “rights in land”. Myths and rituals are seen as essential to its continued well-being. Both then, “land rights” and “community rights in their traditional art”, are to be comprehended within the so called Australian native title, a revolutionary term in legal thinking about Aboriginal land rights, which was established by the Australia’s High Court 5 years before, in 1992, in the case Mabo and Others v. Queensland. The right on the land comes from ancestral occupation, although new trends show the pattern of “persistency” in occupation rather than relying in times which ought to be proved. In the Mabo case the burden of the proof was shifted to the Queensland government, allowing Native people to claim on lands they had traditionally used. In the Bulum Bulum case the defense was mounted by the Minister for Aboriginal Affairs…, the one responsible for protecting the interests of the plaintiffs. If a copyright owner fails or rufeses to take appropriate action to enforce this copyrighyts, then Australian legal courts will do it to protect it (de oficio, legitimación activa), bringin an action based on equity. Australian sensitivity reaches as far as to show both the national and the natives flags in Sidney during the 2000 Olympics.
3. Sign and Symbol wars.
The New Mexico flag has been voted as “the best (one) in the US”: a red cicle radiates four rays against a yellow field. In 1994 the Zia people claimed property on this symbol. Official insignia or symbols of the soveriegn tribes should be protected as much as the symbol or insignia of municipalities, sates, foreign states and so forth. However, if they were protected by law (registration), then the tribes would not been allowed to license them for commercial purposes. Action has been undertaking to protect the more than 17.000 images of petroglyphs inscribed in the rocks of the Pacific US coast. But the enclosure of indigenous iconography to only Native people would lead to a blanket condemnation of all references to it by non-indigenous people. Half of the names os states and provinces originate in Native languages. In 2000 Zia Pueblo negotiated with Southwest Airlines the use of the sun symbol on its aircraft.
Trademarks developed in England in 1618 as indications clearly identifying something as a product of a particular manufacturer.
4. Ethnobotany Blues.
Both medicinal (health and longevity) and mind-altering plants have since long interacted with human beings. Plants play a roll in ritual ceremonies as much as in art. The Amazona’s forest contains 15% of the world’s known plant species. In 1980 the US Supreme Court sentenced that Ananda Chakrabarty (v. Diamond) was right to register a patent protection for a genetically modified strain of bacteria. Just in case, British lady Donna Rawlinson Maclean filed application number GB0000180.0 for a patent on her own body.
West countries lead the world in medical technology thanks to their system of patent protections. Reasearch Universities are no longer open to free exchange of scientific information. Soybean, Ginsen, Ginko biloba… are plants sold out in the supermarkets, though the mind-altering ones are yet waiting for their chance. Is is hard to understand that material from public domain could be converted to private property.
The aim of medical researches is more an area free from patent claims that a social need.
5. Mutual Respect.
Wyoming, the tenth largest state with the smallest population, was the first to grant voting to women and use to mistrust federal coercions. Civil disobedience is called “monkeywrenching”. Half of its land belongs to federal holdings and 3% belong to the Indians (Shoshone and Arapaho).
The BigHorne Medicine Wheel is in Wyoming, 70 miles from Sheridan, at an altitude of 9.600 feet, and is aged 1700/1200 b.p. A buffalo skull looks like looking to the rising sun. Another sacred site is Devils Tower, “Lodge of the Bear” for the Indians (Shoshone, Arapaho, Lakota, Cheyenne, Crow, Kiowa…), a dark monolith in the core of a extinct volcano. The Lakota assure that their ancestors emerged from the underworld. Climbing was reduced (not prohibited) at least during the Summer solstice.
First Amendment to the US Const. prohibits the government to favor a specific religion / the 1978 AIRFA (Amer. Indians Religion Freedom) protects the Indians’ rights to believe an express their traditional…, including acces to sites, use and possession of sacred objects…; public lands are to be available to everybody… / the climbing at Devils Tower is a desecration of a very sacred place… (are cemetery appropriate for recreation activities?) (or mysticism should not be allowed the rational explotation of natural resources?). In the 1998 Lyng case the Supreme Court ruled for the Forest Service to construct a road through an Indian place which was a shrine for them. The 1972 Yoder case allowed Indian children not to go to public schools.
But no place is too sacred for automobiles.
6. At the Edge of the Indigenous.
In 2001 a bridge joined Hindmarsh Island to South Australia. In the middle of the XIX century, Ngarrindjerri native people were kidnapped, raped, infected with European small-pox and tuberculosis, forced to a mixed-race population, their children removed tro white foster homes, their language into decline. They were a few senior tribe women who kept their secret knowledge (and subsequent mystery that secrecy produces). They threatened they would lay curses on anyone favoring the bridge construction.
In the Little Cojo Bay (Pont Conception, CA) a liquefied natural gas terminal to be set in the 70s would oblige Native Chumash to leave their site. But at that very site was the Gate through which their souls left the world of the living and enter the afterworld. As much as Long Island is the East Gate where sould entered this world. In 1984 the New Mexico Zuni tribe was given right to pass on a trail through a private Arizona ranch, since that 110-mile route was a traditional horseback pilgrimage of theirs every 4 years in the summer solstice.
American Indians increased almost five times faster than the population as a whole in the 80s. By the year 2080 Indians population will surpass 15 million, 90% of which will have less than 50% Indian ancestry. 56% of American Indians live in urban areas, as against 70,73, 83, in Canada, Australia and New Zealand.
7. Native Heritage in the Iron Cage.
Weber’s reference to capitalism as “iron cage”, prison of soulless affluence and procedural uniformity.
Registration as a member of a tribe to be recognized as such. Collective cultures have rights. The children American Indians will be tricultural or more. African culture/Christianity has given rise to new models.
8. Justice in the Global…
Fireworks are prohibited in New York, but Chinese people there simulate their sound and flash in the winter solstice as their tradition commands.
Property law, rare it may seem, is to serve the public good. Patent laws are to encourage, not to stifle, innovation. Property system is due to encourage rather than constrain the ideas’s circulation.
Mickey Mouse property right by Disney Company has been renewed, instead of expiring at the end of its term, because of the close relation between copyright and financial power.
“Legal regulation of culture is at best a fruitless enterprise and at worst an invitation to new forms of manipulation by the powerful. As a Turkish proverb says: a weapon is an enemy even to its owner”.
- the song “Happy Birthday” is under copyright until 2019.
- the MGM roaring lion is trademartked.
- Harley-Davidson tried 1994 to registred its engines sounds.
- “Scenter Court” is a European mark for the smell of fresh grass to protect a tennis ball.
- Navajo, Cherokee aqnd Sioux give name to more than a 100 trademarks.
- Washington Redskins football team has been requested by Native Americans to retire its logos.
- The USPTO denied registration of the mark “Crazy Horse” since it was an Indian leader’s name.
- The Tigua Sun Symbol is requested by the tribe not to be used because of its deep religious meaning: but they use it to feature their owned Speaking Rock Casino.
- Reformation was possible only when the Bible’s Church reading and exegesis monopoly ended.
- Half of the world’s languages will be extinct by the end of the XXI century.
- Just in case, British lady D.R.Maclean filed application number GB180 for a patent on her own body.