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American Indian Culture and Research Journal
Title
Cultural Imperialism and the Marketing of Native America
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Journal
American Indian Culture and Research Journal , 19(3)
ISSN
0161-6463
Author
Whitt, Laurie Anne
Publication Date
1995-06-01
DOI
10.17953
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AMERICAN lNDlAN CULTURE AND RESEARCH IOURNAL
19:3 (1995) 1-31
Cultural Imperialism and the
Marketing
of
Native America
LAURIE ANNE
WHITT
INTRODUCTION
In
1992,
mainstream Euro-America demonstrated the short, selec-
tive, and sanitized character of both the national memory and the
official history that sustains it by celebrating
an
anniversary: the
Columbus Quincentenary, the ”discovery” of the ”New World.”
The vast majority
of
activities generated by this event were festive
and culturally self-congratulatory. Yet there were powerful sub-
currents of protest, indigenous and otherwise, in wide evidence,
contesting the sharply edited, profoundly revisionist nature of
the commemoration. They drove home the moral and method-
ological implications of the fact that history is not only written
from
a
particular standpoint, but that that standpoint has been of
the colonizers, not the colonized.’ The response of Native America
was also a determined assertion of presence and continuity,
pointedly captured by the defiant counter spilling over with t-
shirts, posters and bumper stickers: “Still Here! Celebrating
49,500
years
. .
.
before Columbus.”
Partly as a result of these cultural dynamics, the writing of
history has become more problematic within the general public’s
awareness. Some began openly to question longstanding prac-
tices, notably the racist dimensions of the continued stereotyping
of
Indian people by Hollywood, the media, and the sporting
Laurie Anne Mitt
is
an
associate professor of philosophy at Michigan Techno-
logical University, Houghton, Michigan. She
is
of Choctaw descent.
1
2
AMERICAN
INDIAN
CULTURE
AND RESEARCH
JOURNAL
world? Yet many deeply disturbing aspects of ‘contemporary
Western/indigenous cultural relations were left largely unexam-
ined and unquestioned. One of these is a particularly virulent
form of cultural imperialism-the marketing of Native America
and, most tellingly, of native spirituality.
Consider, for example, that a leading figure of the New Age
recently announced he intended to patent the sweat lodge cer-
emony since native people were no longer performing it cor-
re~tly.~ Could he receive intellectual property protection from the
U.S. government for the sweat lodge ceremony, acquiring the
right to prohibit native people from performing it? To sue them if
they do
so?
Astoundingly, it
is
at least legally arguable that he
could: thereby placing himself
in
a position to limit the access of
native peoples to their own cultural
expression^.^
Yet, were such
to occur, it would be only an escalation (albeit a particularly
egregious one) of a phenomenon already deeply entrenched in
Western culture, the commodification of indigenous spirituality.
The transformation of indigenous spiritual knowledge, objects,
and rituals into commodities, and their commercial exploitation,
constitute
a
concrete manifestation of the more general, and
chronic, marketing of Native America.6
Cultural imperialism is one of
a
number of oppressive relations
that may hold between dominant and subordinated cultures.’
Whether or not it is conscious and intentional, it serves to extend
the political power, secure the
social
control, and further the econo-
mic
profit of the dominant culture. The commodification of indig-
enous spirituality is a paradigmatic instance of cultural imperial-
ism. As such, it plays a politically vital diversionary role, serving
to colonize and assimilate the knowledge and belief systems of
indigenous cultures. Ultimately, it facilitates
a
type of cultural
acquisition via conceptual assimilation: Euro-American culture
seeks to establish itself in indigenous cultures by appropriating,
mining,
and redefining what is distinctive, constitutive of them.
The mechanism for
this
is
an
oft-repeated pattern of
cultural
sub-
ordination that turns vitally on legal and popular views of own-
ership and property,
as
formulated within the dominant culture.
MARKETING NATIVE AMEIUCA
Whether peddled by white shamans, plastic medicine men and
women, opportunistic academics, entrepreneurs, or enterprising
Cultural Imperialism and the Marketing
of
Native America
3
New Agers, Indian spirituality-like Indian
lands
before it-is
rapidly being reduced to the status of a commodity, seized, and
sold. Sacred ceremonies and ceremonial objects can be purchased
at weekend medicine conferences or via mail order catalogs.8
How-to books with veritable recipes for conducting traditional
rituals are written and dispensed by trade publishers? A succes-
sion of born-again medicine people’O have-with greater or lesser
subtlety-set themselves and their services up for hire, ready to
sell their spiritual knowledge and power to anyone willing and
able to meet their price.ll And a literary cult of Indian identity
appropriation known as white shamanism continues to be prac-
ticed.12 Instead of contributing to the many native-run organiza-
tions devoted to enhancing the lives and prospects of Indian
people, New Agers are regularly enticed into contributing to the
continued expropriation and exploitation of native culture by
purchasing an array of items marketed as means for enhancing
their knowledge of Indian spirituality.
Recently, the National Congress of American Indians (an
organization not exactly known for radicalism) issued a “declara-
tion of war“ against “non-Indian wannabes, hucksters, cultists,
commercial profiteers and self-styled New Age shamans” who
have been exploiting sacred knowledge and
ritual^.'^
Throughout
Indian Country, eloquent, forceful critiques of these cultural
developments have been mounted. Writers, intellectuals, activ-
ists, and spiritual leaders14 have joined in identifying and resisting
what has been described as “a new growth industry.
.
.
known as
‘American Indian Spirituali~m”’~~ (henceforth AIS). The phenom-
ena being protested are diverse and include literary, artistic,
scholarly, and commercial products intended for consumption in
the markets of popular culture as well as in those of the cultural
elite.16
When the spiritual knowledge, rituals, and objects of histori-
cally subordinated cultures are transformed into commodities,
economic and political power merge to produce cultural imperi-
alism. A form of oppression exerted by a dominant society upon
other cultures, and typically a source of economic profit, cultural
imperialism secures and deepens the subordinated status
of
those
cultures.
In
the case of indigenous cultures, it undermines their
integrity and distinctiveness, assimilating them to the dominant
culture by seizing and processing vital cultural resources, then
remaking them in the image and marketplaces
of
the dominant
culture. Such “taking of the essentials of cultural lifeways,” Geary
4
AMERICAN INDIAN CULTURE AND RESEARCH JOURNAL
Hobson observes, “is
as
imperialistic as those simpler forms of
theft, such as the theft of homeland by treaty.”17
It
is
a
phenomenon that
spans
native North America, sparking
the fierce resistance of indigenous people in Canada
as
well
as
the
United States. Lenore Keeshig-Tobias, a Toronto-based Ojibwa
poet and storyteller, is a founding member of the Committee to
Re-establish the Trickster, an organization devoted to reclaiming
the native voice in literature. The Canadian cultural industry, she
protests,
is stealing-unconsciously, perhaps, but with the same dev-
astating results-native stories as surely as the missionaries
stole our religion and the politicians stole
our
land and the
residential schools stole our language.
. . .
(It) amount(s) to
cultural theft, theft of voice.18
Wendy Rose makes it plain that the issue here
is
not that “only
Indians can make valid observations on themselves” and their
cultures; rather, it
is
”one of integrity and intent”:
We accept as given that whites have as much prerogative to
write and speak about
us
and our cultures as we have to write
and speak about them and theirs. The question is how this is
done and.
. .
why it
is
done.’9
Some forms of cultural imperialism are the product of aca-
demic privilege and opportunism. The ,/name of Truth or Schol-
arshipJ’20 may be invoked, the cause of scholarly progress, of
advancing knowledge.2l Ojibwa author Gerald Vizenor reproaches
the ”culture cultists (who) have hatched and possessed distorted
images of tribal cultures.”” Their obsession with the tribal past, he
contends, “is not an innocent collection of arrowheads, not
a
crude map
of
public camp sites in sacred places, but rather a
statement
of
academic power and control over tribal images.”23
Sometimes the ’cause’ is one of ethical progress, of moral duty:
Given the state of the world today, we all have not only the
right but the obligation to pursue all forms
of
spiritual insight.
.
. .
[I]t seems to me that I have as much right to pursue and
articulate the belief systems
of
Native Americans as they
On
this reading, the colonization of indigenous knowledge and
belief systems (and the attendant economic profit that their repack-
Cultural Imperialism and
the
Marketing
of
Native America
5
aging brings in the marketplaces of the dominant culture) is not
only morally permissible, it is morally mandated.
Whatever its form, cultural imperialism often plays a diver-
sionary role that is politically advantageous, for it serves to extend-
while effectively diverting attention from-the continued oppres-
sion of indigenous peoples. Acoma Pueblo writer Simon Ortiz
underscores this aspect of the phenomenon. Condemning white
shamanism as a “process of colonialism” and a ”usurping
(of)
the
indigenous power of the people,” he charges that
symbols are taken and are popularized, diverting attention
from real issues about land and resources and Indian peoples’
working hours. The real struggle is really what should be
prominent, but no, it’s much easier to talk about drums and
feathers and ceremonies and those sorts of things. “Real
Indians,” but “real Indians’’ only in quotes, stereotypes, and
”interesting exotica.”.
. .
So
it’s a rip-off.25
Keeshig-Tobias refers to it as “escapist” and a “form of exor-
cism,” enabling Canadians “to look to an ideal native living
in
never-never land” rather than confront ”the horrible reality of
native-Canadian relations.”26 The extent to which cultural imperi-
alism turns on conceptual colonization, and what is ultimately at
stake in this, has been succinctly captured by Oneida scholar Pam
Colorado. She contends that the commodification of indigenous
spirituality enables the dominant culture to supplant Indian
people even
in
the area of their own spirituality.
This
moves
beyond ensuring their physical subordination to securing abso-
lute ideological/conceptual subordination. If this continues,
non-Indians will have complete power to define what is and
is not Indian, even for Indians.
.
.
.When this happens, the last
vestiges of real Indian society and Indian rights will disap-
pear. Non-Indians will then ”own” our heritage
and
ideas as
thoroughly as they now claim to own our land and re-
source~.~~
Some practitioners of AIS are genuinely surprised when they
are charged with arrogance, theft, hucksterism. They see them-
selves as respectfully ”sharing” indigenous spirituality, even as
they make a living on its commercialization, charging hefty fees
to ”share” their version
of
the pipe ceremony
and
the sweat lodge,
and to sponsor New Agers through vision quests. Moreover, they
6
AMERICAN
INDIAN
CULTURE AND RESEARCH JOURNAL
see nothing problematic in this behavior, castigating their critics
as “advocates of censorship.
. .
trying to shackle artistic imagina-
tion”28 or as “Indian fundamentalists” guilty of “reverse racism”29
and of
a
selfish refusal to share traditional knowledge.30
This
last
is to massively distort what is at issue and the source of indig-
enous concern. The Traditional Elders Circle, meeting at the
Northern Cheyenne Nation, is very clear on the point:
[Tlhe authority to carry
.
.
,
sacred objects
is
given by the
people, and the purpose and procedure is specific to time and
the needs
of
the people..
. .
[Plrofit is not the motivation.
. . .
We concern ourselves only with those who use spiritual
ceremonies with non-Indian people for profit. There are
many things to be shared with the Four Colors of humanity
in
our common destiny as one with the Mother Earth. It is this
sharing that must be considered with great care by the Elders
and the medicine people who carry the Sacred Tnt~ts.~~
That those engaged in the buying and selling of products
generated by the
AIS
industry fail to recognize their behavior as
reprehensible suggests that the diversionary function of cultural
imperialism
is
operative at the individual level as well, where it
deflects critical self-reflectionP Hobson speaks of this as an
”assumption
.
. .
that one’s ’interest’ in an Indian culture makes it
okay
.
.
.
to collect ’data’ from Indian people.”33 Ward Churchill
describes a comparable development. New Age practitioners of
AIS,
he maintains,
have proven themselves willing to disregard the rights
of
American Indians to any modicum of cultural sanctity or
psychological sanctuary. They.
. .
willingly and consistently
disregard the protests and objections of their victims, speak-
ing only
of
their
own
“right
to
kn~w.”~
He characterizes the process as one of self-deception. Their task is
to simultaneously hang on to what has been stolen while
separating themselves
from
the
way
in
which it was stolen.
It
is a somewhat tricky psychological project
of
being able
to
“feel good about themselves”.
.
.
through legitimizing the
maintenance of their
own
colonial pri~ilege.3~
Such posturing effectively hides or diverts individuals’ atten-
tion from the nature and consequences
of
their behavior.
It
is,
in
Cultural Imperialism and the Marketing
of
Native America
7
Renato Rosaldo’s terms, grounded on
a
courting of nostalgia,
wherein the agents of colonialism yearn for what they themselves
have altered or transformed. “Imperialist nostalgia” has a para-
doxical element to it:
[Slomeone deliberately alters a form of life, and then regrets
that things have not remained
as
they were prior to the
intervention. At one remove, people destroy their environ-
ment, and then they worship nature. In any of its versions,
imperialist nostalgia uses a pose of ”innocent yearning” both
to capture people’s imaginations and to conceal
its
complic-
ity with often brutal domination.36
This nostalgia is integral to the cultivation of self-deception. It is
a ”particularly appropriate emotion to invoke in attempting to
establish one’s innocence and at the same time talk about what
one has de~troyed.”~~
THE CULTURAL POLITICS OF OWNERSHIP
When confronted by their critics, those engaged
in
the marketing
of Native America frequently do attempt to justify their behavior.
From their reasoning and rhetoric we can elicit some distinctive
features of this variant of cultural imperialism. What we will find
is
a
rationale that has reverberated throughout the history of
dominant/indigenous relations, one that starkly reveals how the
cultural politics of ownership are played out in the context of
oppression.
Consider
Gary
Snyder’s response to indigenous protests.
”Spirituality is not something that can be ’owned’ like a car or a
house,” he asserts. It “belongs to all humanity equally.”38 Or
Albert0 Manguel’s response to Keeshig-Tobias: “No one,” he
contends, ”can ‘steal’
a
story because stories don’t belong to
anyone. Stories belong to everyone.
. .
.
No one.
.
.
has the right to
instruct a writer as to what stories to tell.”39 Yet those who write
and copyright “native” stories, those white shamans who sell
poetry that ”romanticize(s) their ’power’ as writers to inhabit
(Indian) souls and and those culture capitalists
who traffic in “Indian” rituals and sacred objects are all clearly
making individual profit on what “no ‘one” (allegedly)
owns.
Such responses are both diversionary and delusionary. They
attempt to dictate the terms of the debate by focusing attention on
8
AMERICAN INDIAN CULTURE AND RESEARCH JOURNAL
issues of freedom of speech and thought and deflecting it from the
active commercial exploitation and the historical realities
of
power
that condition current dominant/indigenous relations.
In
the
words of Margo Thunderbird,
They came for our land, for what grew
or
could be grown on
it, for the resources
in
it, and for our clean air and pure water.
They stole these
things
from
us.
.
.
and now.
.
.
they've come
for
the
very last of
our
possessions; now they want
our
pride,
our history, our spiritualtraditions. They want torewrite and
remake these
things,
to claim them for themselves.4l
The colonists indeed displayed an array of motivations regard-
ing their presence and conduct in America, and it is similar to that
of the AIS practitioners currently vending Native Americana. The
prospect of profits from speculation lured some to seize native
lands; others, wanting to escape poverty and enhance their lives,
regarded themselves as merely "sharing" underused lands; most
found it convenient to believe that the indigenous inhabitants of
this
continent could have no legitimate claims to land."
Analogous reasoning and rhetoric accompany numerous par-
allel tales of acquisition
in
contemporary Western/indigenous
relations. By examining some of these, we can better elicit the
specious justificatory appeals on which cultural imperialism re-
lies to extend and legitimize such practice. Their cumulative
weight suggests that cultural imperialism, in its late capitalist
mode, requires a legitimating rationale, one that enables the
dominant culture to mask the fundamentally oppressive nature
of its treatment
of
subordinated cultures.
This
rationale
is
fash-
ioned by invoking legal and popular views of ownership and
property prevalent in Euro-American culture and conceptually
imposing these on indigenous cultures. It may take one, and
usually both, of
two
forms-an appeal to common property and
an appeal to private property.
In
the first, the dominant culture
enhances its political power, social control, and economic profit
by declaring the (material, cultural, genetic) resources of indig-
enous cultures to be common property, freely available to every-
one. Thus, whatever the dominant culture finds desirable in
indigenous cultures is declared to be part of the "public domain."
The second appeal accomplishes the same ends
through
opposing
means, facilitating privatization and the transformation of valued
indigenous resources into commodity form. These appeals lie at
the heart of cultural imperialism.
As
we will see, they commonly
Cultural Imperialism and the Marketing
of
Native America
9
function in tandem, with the former preparing and paving the
way for the latter. Three examples will be examined:
(1)
the
copyrighting of traditional indigenous music;
(2)
the patenting of
indigenous genetic resources; and
(3)
the patenting of human cell
lines of indigenous people themselves. We will see how, through
the development of the notion of intellectual property and the
articulation of intellectual property laws, the established legal
system extends and enforces the practice of cultural imperialism.
First, however, to facilitate appreciation of where these examples
fall on the continuum
of
expropriative strategies invoked by
Euro-American culture,
I
offer
a
few remarks about some of their
historical antecedents.
In
an earlier day, imperial powers could appeal to three com-
peting legal theories of territorial acquisition to justify their claims
to sovereignty over new lands: occupation, conquest, and cession.
The first of these, unlike the other
two,
required that the land be
terra
nullius,
devoid of people. According to Blackstone,
if
an
uninhabited country be discovered and planted by
English subjects, all the English
laws
then
in
being
. . .
are
immediately there
in
f0rce.4~
Declaring that the land belonged to no one set the stage for its
conversion into private or individual property-a legally pro-
tected possession. But other legitimating rationales for the
privatizing of property were needed, particularly to accommo-
date other types of property in addition to land. By declaring the
intellectual and cultural properties of indigenous peoples to be
in the public domain-that is, to belong to everyone-the stage
is equally well set for their conversion into private property.
These
two
rationales (terra nullius and public domain) clearly
resemble each other. The notion of property belonging to no one
is the functional equivalent of the notion of property belonging
to everyone; they both serve as the terms
of
a conversion
process that results in the privatization of property. However,
while the concept of terra nullius enabled the privatizing only of
lands, the notion that property in the public domain could come
to be owned by individuals applies to other types of property as
well, such as intellectual and cultural property. The latter
conversion process is addressed below; it might thus be re-
garded as a legal theory of cultural acquisition, whereby West-
ern
intellectual property rights are invoked in the interests
of
10
AMERICAN
INDIAN
CULTURE AND RESEARCH TOURNAL
cultural imperialism in order to appropriate valued intangible
indigenous resources.
The politics of property is the central historical dynamic mediat-
ing
Euro-American/indigenous
relations. Certainly one of the
more obvious examples of this is the General Allotment Act of
1887,
which served to privatize communally owned tribal lands.
A
more recent case
is
that of the struggle to protect Newe Segobia
(Western Shoshone homelands) from further encroachment by
the
U.S.
government. It is a struggle at least as old as the
1863
Treaty of Ruby Valley, in which the
U.S.
first acknowledged
native title to the land. The Western Shoshone have steadfastly
refused payment for the subsequent theft of a large portion of
their land, rejecting the government’s offer of
$26
million
in
damages for land taken by ”gradual encroachment.” The eight-
hundred-acre cattle ranch of Mary and Carrie
Dann
has been a
focal point
in
this
controversy.
In
the early
1970s,
the Dann sisters were told that their cattle
were trespassing on “public range land” and that they must
purchase federal grazing permits to run livestock on ”public
land.” (The terms
public lands
and
public domain lands
designate
lands that are subject to sale or other disposal under the general
laws of the
U.S.
or the states.)44 They have been locked in lawsuits
ever since. Their home has been raided by federal agents, their
livestock impounded, and their brother imprisoned. They were
also recently awarded the ”alternative Nobel Peace Prize” by the
Stockholm-based Right Livelihood F0undation.4~ Says Carrie
Dann,
“The real issue
is
that the United States is attempting to
claim control over sovereign Western Shoshone land and people.
Our land has never been ceded or deeded to the
U.S.,
so it’s not
possible for them just to take it and determine that
our
title to the
land has been extinguished.””
But the politics of property has never been confined to land.
Consider the struggle between Euro-American and indigenous
cultures over the ownership of human remains. Since the
U.S.
claims title to all “cultural property” found on federal public
lands, material items of indigenous cultures discovered on these
lands belong to the
U.S.
government, provided that they are at
least one hundred years of
This
includes human skeletal
materials, which find themselves-together with these other
items-thereby transformed into the “archaeological resources”
of the dominant culture.@ Ultimate authority to regulate the
disposition of such “resources” rests with the secretary of the
Cultural Imperialism and the Marketing
of
Native America
11
interior, according to the Archaeological Resources Protection
Act of
1979.49
Moreover, since the majority of states do not strictly
regulate the excavation
of
native graves and sacred sites on state
or private lands, private landowners have historically been at
liberty to sell, destroy, or otherwise dispose of any material
remains of indigenous cultures as they saw fit or pr~fitable.~~
Thus,
whether it is legally permissible to dig up
a
grave, to
display or sell the contents of it, will turn in part on whether that
grave is in an Indian or non-Indian cemetery.
This
discriminatory
treatment
of
skeletal remains has been noted by various critics.
C.
Dean Higginbotham has observed that ”only the burial and
religious sites
of
Native Americans are regularly subjected
to
archaeologicalexcavation
and study in the United Walter
Echo-Hawk concurs:
If
human remains and burial offerings
of
Native people are
so
easily desecrated and removed, wherever located, while
the sanctity
of
the final resting place
of
other races is strictly
protected,
it
is
obvious that Native burial practices and
associated beliefs were never considered during the devel-
opment
of
American property law.52
Cultural imperialism, then, embraces
a
spectrum
of
expropriative strategies.
At
one end
of
this spectrum we find legal
theories of acquisition that facilitate the dominant culture’s own-
ership of indigenous land and of the material remains of indig-
enous peoples within the land.
At
the other end, we find theories
of acquisition that rely
on
laws of intellectual property to legiti-
mate the privatization
of
less tangible indigenous resources. We
can turn now to three examples in which the legitimating ratio-
nale of public domain is invoked to provide moral and legal cover
for
the theft
of
indigenous cultural and genetic resources.
MUSICAL PIRACY AND LETTERS
OF
MARQUE
Like the rest of U.S. property law, music copyright is based on an
individualized conception of ownership. Existing copyright law
fails to acknowledge any rights
of
indigenous communities to
their traditional music. Indeed, the United States
is
among the
most reluctant of nations to ”consider changes in the copyright
law which would give broad rights to intellectual property for
‘traditional’ rather than individually created culture.”53 Tradi-
12
AMERICAN
INDIAN
CULTURE
AND
RESEARCH
JOURNAL
tional indigenous music is considered to be in the “public do-
main” and
so
not subject to copyright.% Anyone may borrow
extensively from materials in the public domain. Moreover, entire
works may be ”borrowed” from the public domain and receive
copyright protection provided the author or composer has con-
tributed some “modicum of creative and is able to meet
the “originality” requirement. Originality has been interpreted
minimally:
A
work has originality if it is “one man’s alone.”56 Any
“distinguishable variation” of a prior work “will constitute
suffi-
cient originality to support a copyright if such variation
is
the
product of the author’s independent efforts,
and
is
more than
merely The threshold for originality is particularly low
in music: “[A] musical composition is original
if
it is ’the sponta-
neous, unsuggested result of the author’s imagination.”’58 It may
be
achieved by slight variations in the use
of
rhythm, harmony,
accent, or tempo.
Thus,
as Anthony Seeger protests, ”the real issue
is
.
. .
the
economic and cultural exploitation of one group by another
group or individual.” Under existing copyright law,
there is nothing illegal about taking
a
piece
of
“traditional”
music, modifying
it
slightly, performing
it,
and copyrighting
it.
When music is owned
by
indigenous people
it
is
seen
as
“public domain.”
If
it
becomes popular in its ”mainstream”
form, though,
it
suddenly becomes “individual property.”
The
song
brings
a
steady income to the person who individu-
alized
it,
not to the people from whose culture
it
is derived.59
While others are free to copy the original indigenous song with
impunity, were someone to attempt to copy the “original” copy
(now transformed into the legally protected individual property
of
a
composer who has “borrowed” it from the indigenous “pub-
lic domain”), he or she would be subject to prosecution for
copyright infringementm
This
includes any members of the in-
digenous community of the
song’s
origin who cannot meet the
requirements of ”fair use.”61
According to the Universal Declaration of Human Rights,
“Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic produc-
tion of which he
is
the author.”62 Copyright, then, is recognized
as
a
human right but only as an individual human right. Since
copyright laws turn on identifying specific individuals who have
produced the work to be copyrighted, they afford no protection to
Cultural lrnperialisrn
and
the Marketing
of
Native America
13
the traditional music of indigenous communities.
In
response to
this, a United Nations agency-the World Intellectual Property
Rights Organization (WIP0)-proposed in
1984
a set of ”Model
Provisions for National Laws on the Protection of Expressions of
Folklore against Illicit Exploitation and Other Prejudicial Ac-
tions.”
(In
this context, the termfolklore refers to traditions that
transcend the lifespan of individuals.
To
receive protection, more-
over, they need not be ”reduced to material form.”)63 Recognizing
that “no share of the returns from.
.
.
exploitation
is
conceded to
the communities who have developed and maintained’’ their
traditions, the model provisions would treat as a punishable
offense any unauthorized use or willful distortion of folkloric
traditions that is ”prejudicial to the cultural interests of the
community
A
review of the model provisions by a
U.N. group of experts concluded that, despite a desperate need
for protections of this nature, an international treaty would be
premature, since there were no
(1)
workable mechanisms for
resolving disputes or
(2)
appropriate sources for identifying the
folkloric expressions to be protected. Accordingly, to date, no
country has adopted these provisions; they remain proposals for
member states. As Darrell Posey notes, acquiescence to such
arguments is “akin to allowing people to steal property whenever
the owner has failed to announce his or her possession.’’65
Current copyright laws not only fail to protect the intellectual
property of indigenous communities but directly facilitate cul-
tural imperialism by consigning traditional music to the public
domain, then providing for its facile ”conversion” to private
property.
In
such circumstances, copyrights offer legal and intellec-
tual cover for cultural theft. They give an aura of legitimacy to the
privateering activities of individuals who, like Blackbeard and
Henry Morgan, have been granted letters of marque and reprisal
by the government
”so
that they could
do
whatever they wanted.”66
Two critics of the music copyright system have recently demon-
strated an emerging pattern in this regard:
[Slongs from small countries are often picked up and ex-
ploited internationally, with the original collector
or
pub-
lisher claiming the copyright on the “first there, first claim”
principle, and with the original
local
composers or “collec-
tors” getting left
Their evidence includes various examples of the appropriation by
American artists and record companies of the traditional music of
14
AMERICAN INDIAN CULTURE
AND
RESEARCH TOURNAL
the Caribbean, where profits on
a
single calypso song can easily
run
in
the millions without any of
this
flowing back to the peoples
or countries of its origin. They document in detail the confusion
and exploitation that results when “international copyright sys-
tems.
.
.
come into conflict with traditional thinking”:68
[Tlhe identity of the actual composer becomes irrelevant
in
the traditional [calypsonian] system.
This
“positive” public
domain attitude can of course be
totally
exploited by the
legally wise when exposed to
a
system where the first regis-
tered copyright claimant is accepted as the legal owner.
. . .
It’s not easy to merge the cultural norms of a society where
music is regarded as a
gift
to the public with the legal norms
of a society where individual ownership is the holiest pin-
na~le!~~
GENETIC IMPERTALISM
AND
THE ”COMMON HERITAGE”
In
what has been described as ”the last great resource
commercial seed and drug industries are extracting, transform-
ing,
and
commodifying the valuable genetic resources of indig-
enous peoples.
This
time around, it
is
not land or natural resources
that imperialism has targeted but indigenous genetic wealth and
pharmaceutical knowledge. Indigenous peoples inhabit the most
genetically diverse areas of the world, and, once again,
their areas, and their knowledge, are
.
.
.
being mined-for
information. Unless indigenous rights to this material and
knowledge are respected,
this
gene rush
will
leave indig-
enous people
in
the same hole as the other resource rushes.’l
Corporate and academic scientists engaged in “gene-hunting”
and “chemical prospecting” first mine indigenous medicinal and
agricultural knowledge. They then identify and extract selected
plant materials, process these in laboratories and finally through
the legal system-ultimately transforming them into commodi-
ties and legally protected private property, for whose use indig-
enous people must pay. The key first step
is
to declare that these
indigenous genetic resources belong to everyone.
As
the ”com-
mon heritage of humankind.
. .
to be traded as
a
‘free good’ among
the community of nations,”R they are ”not owned by any one
people and are quite literally a part of our human heritage from
Cultural lmperialism and the Marketing
of
Native America
15
the past.”” Thus, they are “looked upon as a public good for
which no payment is necessary or appr~priate.”~~ One may then
convert these free “public” goods into private property and a
source of enormous economic profit.
A
current example is the use by the Uru-eu-wau-wau Indians
of Brazil
of
the bark of the Tike-Uba tree in a preparation that acts
as an anti~oagulant.~~ Reportedly,
a
large U.S.-based chemical
company is attempting to patent these properties of the plant,76
following
a
study by corporate scientists of sap and bark speci-
mens provided to them by members
of
the Goiana Institute for
Prehistory and Anthropology.n The Uru-eu-wau-wau, protest-
ing this commercialization of their knowledge, are challenging
that company’s right to patent their traditional
medicine^.^^
How-
ever, as Janet McGowan notes,
much like Columbus’ voyage, when it comes to U.S. patent
law, it isn’t always aquestionof getting there first, but having
the resources to control and protect your discovery.
.
. .
U.S.
patent law really protect(s) (and financially reward[s]) the
discovery of the known.79
Despite the fact that some
80
percent
of
the world’s population
relies on traditional health care based on medicinal plants and
that
74
percent
of
contemporary drugs have the same or related
uses
in
Western medicine as they do in traditional medical sys-
tems, the pharmaceutical knowledge and medicinal skills of
indigenous peoples are neither acknowledged nor rewarded.
As
one commentator observes,
Traditional remedies.
.
.
are products of human knowledge.
To transform a plant into medicine, one has to know the
correct species, its location, the proper time of collection
. . .
,
the part to be used, how to prepare it.
.
.
,
the solvent to be
used..
.
,
the way toprepare it.
.
.
,
and, finally, posology
..
.
curers
have to diagnose and select the right medicine for the right
patients.s0
Yet, while indigenous pharmaceutical knowledge, like industrial
knowledge, has been accumulated by trial-and-error, ”it has been
made public with no patent rights attached.
. .
.
What are the ethics
behind recording customary knowledge and making it publicly
available without adequate compensation?”g1 Such questions are
all the more pressing because, often, this knowledge is obtained
16
AMERICAN
INDIAN
CULTURE
AND
RESEARCH
JOURNAL
from specialists in the indigenous community only after the
scientist “has established credibility within that society and a
position of trust with the specialist.”82 Research in ethno-
pharmacology83 cannot ignore the omnipresence of pharmaceuti-
cal corporations eager “to analyze, develop, and market plant
products,” to secure “exclusive rights to pertinent information”
collected.M While some ethnopharmacologists have worked to
develop products managed by indigenous communities, others
have been accused of ”stealing valuable plant materials and
appropriating esoteric plant knowledge for financial profit and
professional advancement.”85 Witting or not,
this
collusion of
Western science, business, and legal systems
is
a potent extractive
device:
[Clontemporary patent systems tend to disregard the cre-
ative intelligence
of
peoples and communities around the
world. Thus the Western scientific
and
industrial establish-
ment freely benefits from a steady
flow
of people nurtured
genetic material
and
associated knowledge, and, at times,
after
only
a superficial tinkering, reaps enormous economic
profits through patents, without even token recognition, and
much less economic reward to the rightful owners
of
such
resources.86
Rural sociologist Jack Kloppenburg describes this phenom-
enon as ”the commodification of the ~eed.”~’ He notes that scien-
tists from the advanced industrial nations have, for more than
two
centuries, appropriated plant genetic resources, yet,
[dlespite their tremendous utility, such materials have been
obtained free of charge as the “common heritage,” and
therefore common good, of humanity.
On
the other hand, the
elite cultivars developed by the commercial seed industries
.
. .
are accorded the status
of
private property. They are
commodities obtainable by purchase.88
The process wholly discounts the tremendous investment of
generations of indigenous labor that is involved in the cultivation
of specific plant varieties for their medicinal and nutrient value.89
It credits solely the ”chop-shop” laboratory labor of corporate and
academic scientists who ”modify” what they have taken. Victoria
Tauli-Corpus, representing indigenous peoples at a meeting
of
the
U.N.
Commission on Sustainable Development
(CSD),
under-
scores the exploitation and skewed reasoning that is at work:
Cultural Imperialism and the Marketing
of
Native America
17
Without our knowing these seeds and medicinal plants were
altered
in
laboratories and now we have to buy these because
companies had them patented.
. . .
We are told that the
companies have intellectual property rights over these ge-
netic plant materials because they improved on them.
This
logic is beyond
us.
Why is it that we, indigenous peoples who
have developed and preserved these plants over thousands
of
years, do not have the rights to them anymore because the
laboratories altered them?g0
THE "VAMPIRE PROJECT":
PATENTING INDIGENOUS PEOPLE
There seems to be little that is indigenous that
is
not potentially
intellectual property.g1 This includes indigenous people them-
selves or, more exactly, indigenous cell lines. The Human Ge-
nome Organization (HUGO) is currently engaged in an NIH-
sponsored effort to map and sequence the human genome. This
$3-billion project is supposed to be completed in fifteen years.
Since the project does not consider population-level variation, a
collateral study has been proposed-a "genetic survey of vanish-
ing peoples"92 known as the Human Genome Diversity Project
(HGDP). It proposes to create thousands
of
cell lines from DNA
collected from "rapidly disappearing indigenous populations."93
Some
722
indigenous communities have been targeted for "collec-
ti~n."~~
A recent article in
Science
presents the following rationale for
such
a study:
Indigenous peoples are disappearing across the globe.
. . .
As
they vanish, they are taking with them a wealth
of
informa-
tion buried in their genes about human origins, evolution,
and diversity.
.
.
.
[Elach (population) offers "a window into
the past".
. .
a unique glimpse into the gene pool
of
our
ancestors.
. . .
Already, there are indications
of
the wealth
of
information harbored in the
DNA
of
aboriginal pe0ples.9~
Sir Walter Bodmer, HUGO'S president, refers to the proposed
survey (dubbed the "vampire project" by indigenous delegates to
the United Nations) as "a cultural obligation of the genome
project."" At
an
HGDP workshop on "Ethical and Human Rights
Implications," it was suggested that sampling begin "with the
18
AMERICAN
INDIAN
CULTURE AND RESEARCH JOURNAL
least politically risky groups.
.
. .
If the Project does not proceed
carefully and properly, it could spoil the last good opportunity to
obtain some of
this
data.’J97 What are “proper procedures?” Dr.
Paul Weiss, an anthropologist, proposed the following strategy,
according
to
the summary report:
“Immortalization” can be a very sensitive term and should be
avoided when talking about the intended creation of cell
lines. (Someone suggested using “transformation,” the stan-
dard European practice.) Whether to tell people what you
intend to do, as a technical matter, is a difficult question?8
Not surprisingly, native rights activists such as Jeanette Arm-
strong of Canada’s En’owkin Center describe the ethics commit-
tee as
“a
P.R. operation for the project.”*
Indigenous opposition has been extensive and emphatic. After
heated debate with Stanford law professor Henry Greely, chair of
the HGDP ethics subcommittee, the 1993 Annual Assembly of the
World Council of Indigenous Peoples unanimously resolved
to
’’categorically reject and condemn the HGDP as it
applies
to our
rights, lives, and dignity.”lW In January 1994,
John
Liddle, director
of the Central Australian Aboriginal Congress, protested,
If the Vampire Project goes ahead and patents are put on
genetic material from Aboriginal people,
this
would be legal-
ized theft. Over the last
200
years, non-Aboriginal people
have taken
our
land, language, culture and health-even our
children. Now they want to take the genetic material which
makes us Aboriginal people as well.’O’
And at the June 1993 sessionof the CSD, indigenous representa-
tives described the HGDP as “very alarming”: “[Wle are calling
for a stop to the
Human
Genome Diversity Project which is
basically an appropriation of our lives and being as indigenous
peoples.”1o2 Project opponents
believe we are endangered.
.
.
.
After being subjected to
ethnocide and genocide for
500
years (which is why we are
endangered), the alternative is for
our
DNA
to be collected
and stored.
This
is just a more sophisticated version of how
the remains of
our
ancestors are collected and stored
in
museums and scientific institutions.
Why don’t they address the causes of our being endan-
gered instead
of
spending
$20
million for five years to collect
Cultural Imperialism and the Marketing
of
Native America
19
and store us
in
cold laboratories.
If
this
money will be used
instead
to
provide us with basic social services
and
promote
our rights as indigenous peoples, then our biodiversity will
be protected.lo3
They also raised concerns about patenting and commercial
exploitation: "How soon will it be before they apply for IPRs to
these genes and sell them for a profit?"'"
The legitimacy of these concerns is without question. Indeed,
the U.S. Centers for Disease Control and Prevention (CDC) had
already,
in November 1991, applied for a patent to a cell line
created from
a
Guaymi woman. They did
so
because of its com-
mercial promise and since "the government encourages scientists
to patent anything of interest."'05 However, lack of commercial
interest, together with pressure from indigenous organizations
and their supporters, prompted the CDC to abandon its applica-
tion in 1993.'" The Canadian-based Rural Advancement Founda-
tion International (RAFI) was responsible for discovering the
patent application and sounding the alarm regarding it, noting
that it "represented the sort of profiteering from the biological
inheritance of indigenous people that could become common-
place
as
a result of the proposed Human Genome Diversity
Project.
"'07
CONCLUSION
The justificatory rhetoric embedded in these examples is essen-
tially the same as that invoked by those we encountered at the
outset of this essay who are actively engaged in the marketing of
indigenous spirituality,
In
all of these cases, appeals to common
property, private property, and usually both in succession consti-
tute the legitimating rationale of cultural imperialism. It enables
the dominant culture to secure political and social control as well
as to profit economically from the cultural and genetic resources
of indigenous cultures. Just as the concept of terra nullius once
provided legal and moral cover for the imperial powers' treat-
ment of indigenous peoples, the concept of public domain plays
a
comparable role in late capitalism.
As we have seen, far from being mutually exclusive, these
appeals function together to facilitate
a
conversion, orprivatization,
process. When intellectual property laws of the dominant culture
20
AMERICAN INDIAN CULTURE AND RESEARCH TOURNAL
are imposed on indigenous peoples, the first appeal to common
property or the public domain lays the legal groundwork for the
private ownership secured by the second. What "flows out.
.
.
as
the 'common heritage of mankind'
. . .
returns as a commodity."*o6
This
is a particularly effective strategy for acquiring desired but
intangible indigenous resources-medicinal and spiritual knowl-
edge, ceremonies, artistic expressions. Ownership of such intan-
gibles may in turn (as in the case of genetic information) lead to
control
of,
and denial of indigenous access to, tangible resources.
This
is not
only
"legal theft" of indigenous resources; it
is
legally
sanctioned and facilitated theft.
As
Vandana Shiva comments,
"[Clommunities have invested
.
.
.
centuries of care, respect, and
knowledge" in developing these resources, yet
today, this material and knowledge heritage is being stolen
under the garb
of
IPRs
(intellectual property rights).
IPRs
are
a
sophisticated name for modern piracy.lW
The payoff of imperialistic cultural practice is substantial.
There is considerable economic profit to be reaped from the
commodification and marketing of indigenous cultural resources.
It is also politically invaluable.
As
the established legal system
extends and enforces the practice of cultural imperialism, it brings
with it its own legitimating rationale.
This,
simply put, is
a
way of
speaking about and
thinking
about what is going on-a rhetoric
and a reasoning that plays a politically diversionary role as, at the
individual level, it nurtures self-decep tion.l1° Ultimately, the
two
appeals explored here constitute
a
logic of domination-a struc-
ture of fallacious reasoning that seeks to justify subordination.
The dominant conceptual framework is held to have certain
features that indigenous frameworks lack and that render it
superior.
Such
alleged superiority, it is assumed, justifies the
assimilation of those frameworks and cultures to it."'
This
logic of domination figures vitally
in
the marketing of
Native America. If strategies of resistance to it are to be effective,
they must be situated within the broader social context that
informs it. The extension of the commodity form to new areas is
one of the principal historical processes associated with the politi-
cal economy of capitalism. It provides a way of reproducing the
social relations needed if capital is to survive and grow in a
particular sector.'12 The development of the notion
of
intellectual
property and the articulation of intellectual property laws is a
Cultural Imperialism and the Marketing
of
Native America
21
significant moment in the self-expansion of capital, another in-
stance of "the relentless extension of market assumptions into
areas where the market has not
We are, as Christopher
Lind protests, "forced to genuflect before the great god market in
yet one more area of.
.
.
life."114 It is also a significant move in the
dynamics of power that structure dominant/indigenous rela-
tions, in the growth of cultural imperialism. It wrests away from
indigenous peoples the power to control their cultural, spiritual,
and genetic resources.
As
Kloppenburg notes, "business interests
in the developed nations have worked very hard over the past ten
years to put in place a legal framework that ensures that geneti-
cally engineered materials
.
,
.
can be
Let
us
be clear about what is being critiqued. It is not the
concepts
of
public domain or common heritage, nor even that of
private property per se. It is a particular set
of
social and power
relations-specifically, the dynamic of oppression and domina-
tion mediating Western and indigenous cultures that sustains the
practice of cultural imperialism.
As
outlined here, that practice is
one wherein elements of the dominant culture's conceptual frame-
work-notably, its concepts of ownership and property-are
thrust upon indigenous cultures and enforced by the power of the
state. These concepts tend to dictate the terms of the struggle, to
reinforce current relations of power, and
to
sustain existing ineq-
uities between dominant and indigenous cultures. Resistance to
this is pronounced, adamant, and growing. While indigenous
representatives to the Commission
on
Sustainable Development
acknowledged that many of the cultural and genetic resources of
indigenous cultures can be shared with the rest of the world, they
were resolute that
we will be the ones who will determine how these will be
shared based on our own conditions and our own terms.
We
cannot buy the arguments that we have to play within the
field
of
existing patent and copyright laws to be able to
protect our resources and knowledge.
.
.
.
Is
there a way
of
preserving and promoting biodiversity and indigenous
peoples' knowledge and technology without necessarily being
pushed into the field of intellectual property rights? We are
still seeking for the answers to this."6
The task is as daunting as it is vital. Morton Honvitz has
documented how, during the post-Revolutionary War period,
merchant and entrepreneurial groups rose to political and eco-
22
AMERICAN
INDIAN
CULTURE AND RESEARCH JOURNAL
nomic power, forging an alliance with the legal profession to
advance their own interests through
a
transformation of the legal
system. By the mid-nineteenth century, they had succeeded in
reshaping the legal system to their own advantage and at the
expense of other less powerful groups in ~0ciety.l~'
A
comparable
phenomenon appears to be currently in process
at
the interna-
tional level. Through coercive instruments such as the
GATT,
the
US.
and other leading industrial nations have succeeded in
furthering their interests at the expense of indigenous peoples
and developing nations by strengthening Western intellectual
property systems worldwide. All of this demonstrates the degree
to which law,
as
various critical legal theorists have insisted,"* is
a form of politics. The politics of property and ownership that we
have seen played out in the various examples above is ample
testimony to the fact that, when it comes to dominant/indigenous
relations, law has never been separate from politics. Whether as
appeals to terra nullius or to the public domain, legal theories of
acquisition have, since contact, provided the legitimating ratio-
nale for territorial and cultural imperialism and for the privatization
of indigenous land and resources.
A
first step in undermining
this
process (although it is no more than that) may be to set
to
rest the
fractured fairy tale of a neutral, apolitical legal system.
ACKNOWLEDGMENTS
I
am grateful to Alan
W.
Clarke for extended discussions on the
issues raised in this essay and to Jack Kloppenburg and
M.
Annette Jaimes Guerrero for sharing research materials with me.
NOTES
1.
This
was nicely demonstrated by the quietly reflective and rhetorically
effective query that the Mennonite community employed
to
raise the popular
conscience:
"500
Years Ago the Americans Discovered Columbus on Their
Shores. How Do You
Think
They Felt about It?"
2.
The
work
of
the American Indian Anti-defamation Council and of
activist scholars
such
as Ward Churchill
in
Fantasies
ofthe
Master
Race,
ed. M.
Annette Jaimes (Monroe,
ME:
Common Courage Press, 1992) and
Zndians Are
Us?
(Monroe,
ME:
Common Courage Press,
1994)
has been instrumental
in
this
regard.
Cultural lmperialism and the Marketing
of
Native America
23
3.
This was related by Robert Antone in “Education as a Vehicle for Values
and Sovereignty,” an address given at the Third International Native American
Studies conference at Lake Superior State University in October
1991.
However, the more probable route would be a copyright, not a patent.
See
17
U.S.C. 106 (Exclusive Rights in Copyrighted Works). This would involve
reducing the ceremony to some tangible expression, then claiming authorship
of it. The broad construal of the salient legal terms, especially
writings (Goldstein
v.
California,
412
U.S.
546 [19731),
suggests this is feasible. However, given
constitutionally protected religious freedom, any suit for copyright infringe-
ment would likely be dismissed out of hand.
See
17
U.S.C.
110
(Exemptions of Certain Performances and Displays);
see also
Robert
Stigwood Group Lfd.
v.
O’Reilly,
530
F.2d
1096
(2d.
Cir.
1976).
The sale of ”authentic” Indian images and “genuine handmade” trin-
kets reaches far into the history of Euro-American/indigenous relations.
Various radical theorists and social critics have alluded to cultural
imperialism, although few characterize it at length. My discussion differs
somewhat from that of Iris Young (in ”Five Faces of Oppression,”
Rethinking
Power,
ed. Thomas Wartenberg [Albany, NY:
SUNY
Press,
19921).
I
agree with
her that it is one of several forms of oppression, but
I
emphasize its impact on
the cultures rather than the individuals subjected to it.
I
move freely in this
paper between references to indigenous cultures generally and native North
American cultures more specifically, since the practice of cultural imperialism
under consideration is similarly imposed upon them. However, closer analyses
of how specific historical, political, cultural, and socioeconomic circumstances
condition and modify such practice are needed.
The crassness of this commodification is
stunning,
as a perusal of the
Berkeley, California-based Gaia Bookstore and Catalog Company readily re-
veals. Their
1991
catalog, for example, offers a series of oracular Medicine Cards
and Sacred Path Cards (with titles such as “Medicine Bowl,” ”Give-Away
Ceremony,” and ”Dreamtime”) that promise “the Discovery of Self Through
Native Teachings.” Such spirituality, noted Osage scholar George Tinker
observes, is “centered on the self, a sort of Western individualism run amok” (in
David Johnston, “Spiritual Seekers Borrow Indian Ways,”
New York Times,
27
December
1993,
section A), whereas Indian spirituality focuses on the larger
community,
the tribe, and never on the individual.
Two illustrative examples are
John
Redtail Freesoul’s
Breath
of
the
Invisible:
The
Way
ofthe
Pipe
(Wheaton, IL: Theosophical Pub. House,
1986)
and
Ed McGaa’s
Mother Earth Spirituality
(San Francisco: Harper Books,
1990).
Among these are
Sun
Bear, Wallace Black Elk, Grace Spotted Eagle,
Brook Medicine Eagle, Osheana Fast Wolf, Cyfus McDonald, Dyhani Ywahoo,
Rolling Thunder, and “Beautiful Painted Arrow.” See Churchill’s
Indians
Are
Us?
for a powerful critique of these and other spiritual hucksters.
Consider, for example, a recent flyer advertising the
1994
Rochester
workshops of Brook Medicine Eagle, who is pictured in feathers, bone, leather,
and braids. The text describes her as
an
“American native Earthkeeper” whose
book
Buffalo Woman
Comes
Singing
(New York Ballantine,
1991)
offers ”ancient
4.
5.
6.
7.
8.
9.
10.
11.
24
AMERICAN INDIAN CULTURE AND RESEARCH JOURNAL
truths concerning how to live
.
.
.
in harmony with All Our Relations.” She is
currently offering a $150 workshop on “shamanic empowerment” to “awaken
the higher level of functioning possible for two-leggeds.”
12. For more extensive discussion,
see
Leslie Silko,
“An
Old-Time Indian
Attack Conducted
in
Two Parts: Part One: Imitation ‘Indian’ Poems; Part Two:
Gary Snyder’s
Turtle Island,”
in
The Remembered Earth: An Anthology
of
Contem-
porary Native American Literature,
ed. Geary Hobson (Albuquerque: University
of New Mexico Press, 1979); Wendy Rose, “Just What’s All
This
Fuss about
White Shamanism Anyway?” in
Coyote Was Here,
ed.
Bo Scholer (Aarhus,
Denmark University
of
Aarhus Press, 1984); and Churchill’s
Fantasies
of
the
Master Race.
13. Johnston, “Spiritual Seekers Borrow Indian Ways,”
1.
14. These include Leslie Silko, Vine Deloria, Wendy Rose, Oren Lyons,
Geary Hobson, Joy Harjo, Gerald Vizenor, Ward Churchill, Russell Means,
AIM, the Circle of Elders
of
the Indigenous Nations of North America, and
many others.
15. Churchill,
Fantasies
of
the Master Race,
215.
16. Christopher Lind, ”The Idea
of
Capitalism or
the
Capitalism
of
Ideas? A
Moral Critique of the Copyright Act,“
Intellectual Property Journal
7 (December
1991). Lind misunderstands the nature of
this
protest and of
the
“claim being
made by aboriginal artists and writers of colour
. .
.
that whites are ’stealing’
their stories”(p. 69). He insists that “(w)hat is being stolen
is
not the story itself
but the market for the story
.
.
.
or the possibility
of
being able to exploit the
commercial potential” (ibid.)
of
the story. Indigenous critiques are directed
against the very fact of commercialization, against the extension of the market
mechanism to these cultural materials by the dominant society. The claim being
made is that this continues and extends a long history of oppression, that it
constitutes theft of culture, of voice,
of
power.
17. Hobson,
The Remembered Earth,
101.
18. Laura Keeshig-Tobias, “Stop Stealing Native Stories,”
Toronto Globe and
19. Wendy Rose, “The Great Pretenders,” in
The State
of
Native America,
ed.
20. Hobson,
The Remembered Earth,
101.
21.
Cultural imperialism
is
often at its apex in the academy. As a result of
the stubborn influence
of
positivism, knowledge claims within the dominant
(academic) culture continue to be regarded as value-free.
An
instructive ex-
ample of this is Wilcomb Washbum’s “Distinguishing History from Moral
Philosophy and Public Advocacy” (in
The
American Indian and the Problem
of
History,
ed.
Calvin Martin [New York: Oxford University Press, 19871).
A
past
president of the American Society for Ethnohistory, Washbum is particularly
upset about “the process of using history
to
promote nonhistorical causes.” He
reacts with consternation to the recent call for historians to “form alliances with
non-scholarly groups organized for action to solve specified societal prob-
lems,” which he associates with “leftist academics” and “Indian activists”
Mail,
26 January 1990, section
A.
M.
Annette Jaimes (Boston,
MA:
South End Press, 1992), 415-16.
(P. 95).
Cultural Imperialism and the Marketing
of
Native America
25
Washburn offers himself as an example of a historian committed to what one is
tempted to call a Great White Truth, a Truth properly cleansed of all values:
[A111 my efforts are guided by, and subject to, the limitations of historical
truth.
.
. .
There is no place in the scholarly profession of history for such
distorting lenses. History to me means
a
commitment to truth..
.
however
contradictory it may be to our.
. .
acquired convictions about how the
world should be. (p.
97)
He assumes that his work, like his conception of truth, is unburdened by such
distorting lenses and remains both value-free and politically neutral. Yet note
that this work includes his ”recent experiences in writing Indian history, which
involve combat with radical theorists on the ideological front”;
his
letters to the
Dartmouth Review
in support of the use of the Indian as a symbol; his efforts
abroad to “justify United States policy.
.
.
to spike assertions
of
genocide.
. .
to
disprove the assertion that
. .
.
multinational corporations control the United
States Government and seek to exploit the resources of all native peoples
against their will” (p.
94).
All this, we are to suppose, is “value-free.” And he
goes on to claim that some will recognize his ”lifelong and quixotic pursuit of
the reality of the Indian as ‘noble”’ (p.
97).
Gerald Vizenor, “Socioacupuncture: Mythic Reversals and the Strip-
tease in Four Scenes,” in Martin,
The
American lndian and
the
Problem
of
History,
183.
22.
23.
hid.
24.
25.
26.
27.
28.
29.
30.
Gary Snyder, as cited in Churchill,
Fantasies
of
the
Master Race,
192.
Simon Ortiz in an interview in
Winged Words: American Indian Writers
Speak,
Laura Coltelli (Lincoln,
NE:
University of Nebraska Press,
1990),
111-12.
Keeshig-Tobias, ”Stop Stealing Native Stories,”
7.
Pam Colorado, as cited in Churchill,
Fantasies
of
the
Master Race,
101.
Keeshig-Tobias, “Stop Stealing Native Stories,”
7.
Johnston, “Spiritual Seekers Borrow Indian Ways,”
15.
See, for example, Ed McGaa’s comments
in
Johnston, “Spiritual Seekers
Borrow Indian Ways,” 15. Wendy Rose also addresses herself to rebutting this
point, noting that white shamanism has touched upon something very real and
that its critics are not set on hoarding or on purposively withholding spiritual
knowledge:
An entire population is crying out for help, for alternatives to the spiritual
barrenness they experience.
. . .
They know.
. .
that.
. .
part
of
the answers
to
the questions producing their agony may be found within the codes of
knowledge belonging to the native peoples of this land. Despite what
they have done.
. .
it would be far less than Indian of
us
were we not to
endeavor to help them. Such are our Ways, and have always been our
Ways. (Rose, p.
418)
31.
Cited in Churchill,
Fantasies
of
the Master Race,
223-24.
26
AMERICAN
INDIAN
CULTURE
AND
RESEARCH
JOURNAL
32.
I
refer to
this
facet of cultural imperialism elsewhere as a ”no-fault”
assumption-the belief that the literary, artistic, scholarly, and commercial
products of AIS are neither epistemologically nor ethically suspect
or
at fault,
that they are legitimate and morally unproblematic vehicles of spiritual knowl-
edge and power. (See Laurie Anne Whitt, “Indigenous Peoples and the Cultural
Politics of Knowledge,” in
Issues in American Indian Cultural Identity,
ed. Michael
Green [New
York
Peter Lang Press,
19951).
There
I
also
address the commodi-
fication of indigenous spirituality and develop some of the epistemological
issues raised by it at greater length. In particular,
I
focus on some central
features of the dominant knowledge system that facilitate the “no-fault” as-
sumption, features that permit and facilitate the marketing
of
Native America
more generally.)
33.
Hobson,
The
Remembered Earth,
101.
34.
Churchill,
Fantasies
of
the Master
Race,
210.
35.
Ibid.
36.
Renato Rosaldo,
Culture and Truth
(Boston: Beacon Press,
1993),70.
37.
Ibid.
38.
Gary Snyder, as cited in Churchill,
Fantasies
of
the
Master
Race,
192.
39.
Albert0 Manguel, “Equal Rights to Stories,”
Toronto Globe and Mail,
3
40.
Leslie Silko, as cited in Michael Castro,
Interpreting the Indian
(Albuquer-
41.
Churchill,
Indians Are
Us?
216.
42.
David Lyons, “The Balance of Injustice and the War for Independence,”
Monthly Review
45 (1945):
20.
43.
Gerry Simpson,
“Maybo,
International Law,
Terra Nullius
and the Stories
of Settlement: An Unresolved Jurisprudence,”
Melbourne University Law Review
19 (1993): 199.
February
1990,
Section D.
que: University of New Mexico Press,
1983)) 161.
44.
Northern
Pac.
Ry. Co.
v.
Hirzel,
161
P.
854,859
(Idaho
1916).
45.
The Dann sisters were honored for ”their courage and perseverance in
asserting the right of Indigenous peoples to their land” (Valerie Taliman, “Dann
Sisters Win International Award for Commitment to Native Rights,”
Newsfrom
Indian Country
720 [19931:
1.
46.
Taliman,
“Dm
Sisters Win International Award,”
5.
More detailed
consideration of
this
case can be found in Glenn Morris, “The Battle for Newe
Segobia: The Western Shoshone Land Rights Struggle,” in
Critical Issues in
Native North America,
vol.
2,
ed. Ward Churchill (Copenhagen: International
Working Group for Indigenous Affairs [IWGIA],
1990).
47.
Speaking of the Antiquities Act of
1906,
Walter Echo-Hawk notes that
“the underlying assumption..
.
is that all ’cultural resources’ located on federal
land ’belong’ to the United States, and can be excavated only for the benefit of
public museums. There are no provisions for Native ownership
or
disposi-
tion.” (Walter Echo-Hawk, “Museum Rights vs. Indian Rights: Guidelines for
Assessing Competing Legal Interests in Native Cultural Resources,”
Review
of
Law
and Social Change
14 [1986]: 449.
See
this
article for a discussion
of
the
American Indian Religious Freedom Act and
its
implications for ownership of
Cultural Imperialism and the Marketing
of
Native America
27
native resources.) The Antiquities Act has never been formally repealed,
although it has been superseded by the Archaeological Resources Protection
Act of 1979.
The term
cultural property
is generally considered to include “objects of
artistic, archaeological, ethnological, or historical interest”
(John
Merryman,
”Two Ways of Thinking about Cultural Property,”
The
American Journal
of
International Law
80:4
[
19861: 831). An ”archaeological resource” refers to any
material remains of past human life and activities that have been determined to
be of ”archaeological interest.” See 16
United States Code,
section 470bb(l).
16
United States Code,
section 470(dd). However, this act, unlike the
earlier Antiquities Act, does require that Indian tribes be notified of any
excavation permit that might cause harm to the cultural sites. See 16
United
States Code,
section 47Occ(c).
Indeed, according to a recent article on a Colorado development known
as ”Indian Camp Ranch,” prospective homeowners
48.
49.
50.
can now purchase land where more than 200 Anasazi sites have been
identified..
.
.
Those who buy property.
. .
will also be allowed to excavate
sites on their land.
. . .
Artifacts recovered will become the property of a
museum to be built in the area. Homeowners will be allowed to display
recovered artifacts in their residences, provided they are turned over to
the museum upon their death.
(Archaeology,
[March/April1995], 14)
According to the state archaeologist of Colorado, such land-use plans are legal.
C. Dean Higginbotham, “Native Americans versus Archaeologists: The
Legal Issues,”
American Indian Law Review
10 (1982): 99-100.
Echo-Hawk,”Museum Rights
vs.
Indian Rights,“
448.
Anthony Seeger, ”Singing Other Peoples’ Songs,”
Cultural Survival
Quarterly
15:3 (Summer 1991): 39.
Moreover, since the 1976 Copyright Act extends copyright protection
for the lifetime of the author plus fifty years,
only
“recent” compositions qualify
for copyright protection. See 17
United States Code,
section 302 (a).
55.
Amsterdam
v.
Triangle Publications,
Inc.,
189 F.2d. 104,294 (3d Cir. 1951).
56.
Bleistein
v.
Donaldson Lithographing Co.,
188
U.S.
239 (1903).
57. M.B. Nimmer, as cited in Maureen Baker, “La(w)-A Note to Follow
So:
Have We Forgotten the Federal Rules of Evidence in Music Plagiarism Cases?”
Southern California Law Review
65 (1992): 1590.
51.
52.
53.
54.
58.
Hirsch
v.
Paramount Pictures,
17 F. Supp. 816,817 (S.D. Cal. 1937).
59. Seeger, ”Singing Other Peoples’ Songs,”
38.
60. See
Bleistein
v.
Donaldson Lithographing
Co.,
188
U.S.
239 (1903).
61. 17
United States Code,
section 107 (amended 1992).
62.
U.S.
Constitution, Article 27 (2).
63. Darrell Posey, “Effecting Internationalchange,”
Cultural Survival Quar-
64.
bid.
65. Ibid.
terly
15:3 (Summer 1991): 31.
28
AMERICAN
INDIAN
CULTURE
AND
RESEARCH TOURNAL
66. Jack Kloppenburg, ”Conservationists or Corsairs?”
Seedling
(June/ July
67. Roger Wallis and Krister Malm,
Big Soundsfrom Small People
(New York
68. Ibid., 199.
69. Ibid., 199,188.
70. Jason Clay, “Editorial: Genes, Genius, and Genocide,”
Cultural Survival
Quarterly
14:4 (1990): 1.
71. Ibid.
72. Norman Myers,
A
Wealth
of
Wild Species
(Boulder, CO Westview Press,
1983), 24.
73. Garrison Wilkes, ”Current Status
of
Crop Germplasm,”
Critical Reviews
in
Plant Sciences
12
(1983): 156.
74. Jack Kloppenburg and Daniel Kleinman, ”Seed Wars: Common Heri-
tage, Private Property, and Political Strategy,”
Socialist Review
95 (September/
October 1987):
8.
1992), 14.
Pendragon Press, 1984), 190-91.
75. Kloppenburg,
“No
Hunting!”
Z
Magazine
(September 1990), 106.
76. Clay, “Editorial: Genes, Genius, and Genocide,”
1.
77.
John Jacobs et al., “Characterization of the Anticoagulant Activities
from a Brazilian Arrow Poison,”
Journal
of
Thrombosis and Haemostasis
63:l
(1991):
34.
Andrew Gray, “The Impact
of
Biodiversity Conservation on Indigenous
Peoples,“ in
Biodiversity: Social and Ecological Perspectives,
ed. Vandana Shiva
(Atlantic Highlands,
NJ:
Zed
Books,
1991), 67.
79. Janet McGowan,
“Who
Is
the Inventor?”
Cultural Survizial Quarterly
15:l
(Summer 1991): 20.
80.
Elaine Elisabetsky, “Folklore, Tradition, or Know-How?“
Cultural Sur-
vival Quarterly
15:l (Summer 1991):
10.
81.
A.B. Cunningham, “Indigenous Knowledge and Biodiversity,”
Cultural
Survival Quarterly
15:l (Summer 1991): 4.
82.
Brian Boom, “Ethics
in
Ethnopharmacology,” in
Ethnobiology: Implica-
tions and Applications,
ed. Darrell A. Posey et al. (Bel6m, Brazil: Proceedings of
the First International Congress
of
Ethnobiology, 1990), 150-51.
Defined from the perspective of the dominant science, ethno-
pharmacology is the “scientific study
of
the
medicinal uses
of
plants and
animals by human groups other than the dominant Western society” (Boom,
”Ethics in Ethnopharmacology,” 148).
78.
83.
84. Boom, “Ethics in Ethnopharmacology,” 149.
85.
%id.
86.
GRAIN (Genetic Resources Action International), ‘‘GATT, the Conven-
87. Kloppenburg,
First
the
Seed: The Political Economy
of
Plant Biotechnology,
88.
Kloppenburg and Kleinman, “Seed
Wars,”
24.
89. This was acknowledged by Illinois congressman John Porter who, in
1990, introduced a resolution to discontinue the ongoing GATT negotiations
tion and
IPS,”
Econet,
in the conference “Biodiversity”
(28
June 1994).
1492-2000
(Cambridge, England: Cambridge University Press,
1988),
11.
Cultural lmperialism and
the
Marketing
of
Native
America
29
regarding the extension of intellectual property rights to genetic and biological
resources. The difficulty with the
U.S.
proposal on trade-related aspects
of
intellectual property rights, Porter charged, is that
it fails to consider the value of biological and genetic material and
processes in developing nations, as well as the invaluable and historic
contributions of local people in the use of that material.
Since these people typically do not have access to representation to
ensure that their interests are protected in the GATT process, we have an
obligation to recognize their rights.
(John
Porter, “A Resolution Affecting
the GATT Negotiations on Intellectual Property Rights for Genetic and
Biological Resources,”
Congressional Record,
lOlst Cong., 2d sess., vol. 136,
no. 94 [20 July 19901,
E
2425)
90.
91.
Victoria Tauli-Corpus, ”We Are Part
of
Biodiversity, Respect Our
Rights,”
Third World Resurgence
36 (1993): 25.
Or, for that matter, little at all.
U.S.
patents protect “anything under the
sun made by man.” New life forms have been patented
(Diamond
v.
Chakrabarty,
447
U.S.
303 [1980]). And the right to patent and commercially exploit human
cells, even over the protests of that individual, has been recognized
(Moore
u.
Regents
ofthe
Uniuersify
of
California,
793 P.2d 479 [Ca1.19901, cert. denied
111
S.Ct. 1388 [1991]).
92. Leslie Roberts,
“A
Genetic Survey of Vanishing Peoples,”
Science
252
(1991): 1614.
93. Ibid.
94.
A
valuable overview of these and related developments can be found in
the following RAFI (Rural Advancement Foundation International)
Comrnuni-
9uiss:
”Patents, Indigenous Peoples, and Human Genetic Diversity,” May 1993;
“The Patenting of Human Genetic Material,” January/February 1994; and
“‘Gene Boutiques’ Stake Claim to Human Genome,” May/ June 1994.
Roberts,
“A
Genetic Survey of Vanishing Peoples,” 1614,1617.
Ibid., 1615. Perhaps he refers to it thus for reasons of expediency, since,
“for reasons of expediency, the human genome being mapped and sequenced
(by
HUGO)
is essentially a Caucasian one“ (Roberts,
“A
Genetic Survey of
Vanishing Peoples,” 1614).
Henry Greely, “Summary of Planning Workshop 3(B): Ethical and
Human Rights Implications” (Bethesda, MD: Human Genome Diversity Project
Organizing Committee, 1993), 22-23.
Paul Weiss, as cited in Greely,
“Summary
of Planning Workshop 3(B),”
6.
Beth Burrows, ”Life, Liberty and the Pursuit of Patents,”
The
Boycott
bid. HGDP was unanimously denounced at the December 1993 meet-
95.
96.
97.
98.
99.
100.
Quarterly
21
(1994): 33.
ing of the World Council
of
Indigenous Peoples:
The assumption that indigenous people will disappear and their cells will
continue helping science for decades is very abhorrent to
us.
. . .
We’re not
30
AMERICAN
INDIAN
CULTURE AND RESEARCH JOURNAL
opposed to progress. For centuries indigenous people have contributed
to science and medicine, contributions that are not recognized. What
upsets us is the behavior of colonization. (Rodrigo Contreras, as cited in
Patricia
Kahn,
“Genetic Diversity Project Tries Again,”
Science
266
[No-
vember
19941: 721)
101.
John
Liddle, as cited in Burrows, ”Life, Liberty and the Pursuit
of
102.
Tauli-Corpus, ”We Are Part of Biodiversity,”
26.
103.
Ibid.,
25-26.
104.
Ibid.,
26.
For a copy of the “Declaration of Indigenous Peoples
of
the
Western Hemisphere Regarding the Human Genome Diversity Project,” signed
on
19
February
1995
by numerous indigenous organizations, see
lndigenous
Woman
2:2: 32-33.
Christopher Anderson,
“. .
.
While CDC Drops Indian Tissue Claim,”
Science
262 (1993):
831.
There are other reported cases as well. According to Miges Baumann,
of
Swissaid,
two
more patent applications by the
U.S.
government
of
indigenous
cell lines (from Papua New Guinea and the Solomon Islands) exist. See Bur-
rows, ”Life, Liberty and the Pursuit
of
Patents,”
33.
Patents,“
33-34.
105.
106.
107.
Anderson,
”. . .
While CDC Drops Indian Tissue Claim,”
831.
108.
Kloppenburg and Kleinman, “Seed Wars,”
25.
109.
Vandana Shiva, as cited in Beth Burrows, “How Do You Spell Patent?
P-I-R-A-C-Y,”
The
Boycott Quarterly
1:3 (1994): 6,5.
110.
Intellectual property policies are justified
in
theConstitutiononutilitar-
ian grounds as a means “to promote the progress of science and useful arts”
(U.S.
Constitution, art.
1,
sec.
8,
cl.
8).
Yet the lack of evidential support for the
claim that patents and copyrights have indeed effectively promoted these ends
has beennoted (see Gerald Dworkin, “Commentary: Legal and Ethical Issues,”
Science, Technology,
&Human
Values
12:l [1987]).
In
its
place, one is generally
offered appeals to “faith” that they are doing
so;
for example, “Faith in the
private sector’s ability to produce beneficial innovations
is
strong at the mo-
ment” (Pamela Samuelson, “Innovation and Competition: Conflicts over Intel-
lectual Property Rights
in
New Technologies,”
Science, Technology
&
Human
VuIues
121 [1987]).
111.
For a characterization of oppressive conceptual frameworks and discus-
sion of the logic of domination, see Karen Warren,
“A
Philosophical Perspective
on the Ethics and Resolution of Cultural Properties Issues,” in
The
Ethics
of
Collecting
Cultural
Property,
ed. Phyllis Messenger (Albuquerque: University
of
New Mexico Press,
1989).
112.
See Kloppenburg,
First the
Seed,
and Kloppenburg and Kleinman, “Seed
Wars.“
113.
Lind, “The Idea of Capitalism or the Capitalism of Ideas?”
70.
114.
Ibid.
115.
Kloppenburg,
”No
Hunting!”
106.
116.
Tauli-Corpus, “We Are Part of Biodiversity,”
26.
Cultural Imperialism and the Marketing
of
Native America
31
117.
bridge,
MA:
Harvard University Press,
1977).
118.
(1988).
Morton
Horwitz,
The
Transformafion
of
American Law,
1780-1860
(Cam-
See Joseph William Singer, ”Legal Realism,”
California Law
Review
76
